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All Reporters → bankr-lexis → Volume 1995

Opinions in bankr-lexis Volume 1995

OPINION A. INTRODUCTION Before this court is the Debtor’s Application to waive the $160 filing fee and administrative fee, pursuant to the informa pauper-is (“IFP”) pilot program established in this court and five other bankruptcy courts (“the IFP Program”), despite the fact that a $600 attorney’s fee has been paid on the Debtor’s behalf. We first review the standa...
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MEMORANDUM OPINION This matter is before the court on BT Commercial Corporation’s (“Plaintiff’) Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment, filed June 1, 1994 in The United States Bankruptcy Court for the Middle District of North Carolina; Kenneth M. Kochekian’s (“Defendant”) Motion for Partial Summary Judgment and Memorandum of Law in Supp...
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MEMORANDUM DECISION OVERRULING OBJECTIONS TO THE DEBTOR’S DISCLOSURE STATEMENT The ostensible matter before the Court— approval of the Debtor’s disclosure statement — masks the real issue: should the Court designate a secured creditor’s vote based on claims purchased during the Chapter 11 case for the avowed purpose of defeating confirmation? KHD Acquisition Corp. (“KHD”) holds an approxi...
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DECISION AND ORDER Hearings were held on October 26, 27, and 28, 1994, on the motion of Crestar Bank (herein Crestar) to dismiss the Chapter 11 case of AMA Corporation (herein the Corporation) on the ground that the case was filed in bad faith. The Court has heard testimony, judged the credibility and demeanor of witnesses, and considered authority provided by the parties. For the reasons...
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MEMORANDUM OPINION This matter came before the Court for trial on the merits of the complaint brought by the Trustee for Angel Fire Ski Corporation (Angel Fire Ski), Angel Fire Corporation (Angel Fire) and Sangre de Cristo Limited Partnership IV (Sangre IV) and the First National Bank of Santa Fe (FNBSF) against Parker Town Square (Parker) and Alfred Staehely to determine the validity, priority a...
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MEMORANDUM TO ORDER DENYING CONFIRMATION OF PLAN This is a Chapter 13 case. On September 30, 1994, the Court entered an order that denied confirmation of the Debtors’ plan of debt adjustment, sustaining the objection of General Motors Acceptance Corporation (“GMAC”) thereto. This memorandum contains the findings of fact and conclusions of law on which that order was based, pursuant to Fed...
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This memorandum opinion constitutes the court’s decision on a motion for partial summary judgment filed by plaintiff Oil, Chemical & Atomic Workers International Union, AFL-CIO-CLC (“OCAW”) against debtor-in-possession Hanlin Group, Inc. and its affiliated companies (“Hanlin” or “Debtor”) as to OCAW’s complaint in this adversary proceeding. The court has jurisdiction pursuant to 28 U.S.C. §§ 13...
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OPINION A INTRODUCTION Resolution of the instant proceedings and related motions, presented to this court on a Stipulation of Facts, ultimately turns on an analysis of the effect, on the Debtor’s present case, of a Chapter 13 discharge of her husband (“the Husband”) in a prior Chapter 13 case of his own. We find that, while the Husband’s case discharged his personal obligation to the Mortgagee of...
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OPINION Introduction. Before the court is the Motion of Hajar Godwin (“Godwin”) seeking determination of the amount of her claim against the above Chapter 11 Debtor, Visiting Nurse Association d/b/a Home.' Healthcare Services of Montgomery County & Vicinity (“VNA”). Resolution of this issue requires a two part analysis. Initially, the question of the Debtors standing to oppos...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon the Objection to Exemptions filed by the chapter 7 trustee, Gregory K. Crews (“trustee”). The Court held a hearing on November 23, 1994, and upon the stipulation of facts submitted, enters these Findings of Fact and Conclusions of Law: Findings of Fact The parties have agreed upon the relevant facts 1: 1. The debtor, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint filed by plaintiffs, Federal Signal Corporation and its wholly owned subsidiary, Emergency One, Inc., which seeks to except a debt from defendant’s discharge pursuant to 11 U.S.C. § 523(a)(2), (a)(4) and (a)(6). The Court held a trial on June 15, July 26, and August 9, 1994, and upon the evide...
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MEMORANDUM DECISION This matter came before the Court November 30, 1994, for trial on the complaint of Creditor, American Express Centurion Bank (“Amex”), wherein Amex seeks, pursuant to 11 U.S.C. § 523(a)(2)(A), to except from discharge the indebtedness of $97,409.14 owed by Robert Brownell O’Brien, Jr. (the “Debt- or”). Amex contends that the Debtor purchased goods and services and obtained...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon the Objection to Exemptions filed by the chapter 7 Trustee, Gregory K. Crews (Trustee). The Court held a hearing on November 9, 1994, and upon the evidence presented, enters these Findings of Fact and Conclusions of Law: Findings of Fact Debtor filed his chapter 7 petition August 17, 1994. In schedule C debtor claimed...
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OPINION At issue in this Chapter 11 case is the validity and priority of competing judicial liens on oil produced from oil and gas leases in which the debtor owns an interest. The debtor, John Prior, owns overriding royalty interests in two oil and gas leases in Clinton County, Illinois, entitling him to a specific share of oil produced from the leases. The judgment creditors in quest...
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MEMORANDUM OF OPINION On August 27, 1993, 37 days after the July 21, 1993, bar date ordered by the Court, the State of Ohio Department of Taxation (the “State”) filed a proof of claim in this involuntary chapter 7 proceeding in the amount of $525,070.99 reflecting a sales tax assessment due for 1983 (the “State’s Claim”). The Trustee objected to the State’s Claim asserting it was filed la...
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OPINION PROCEDURAL BACKGROUND This matter comes before the court on the motion of First Fidelity Bank, N.A. (“FFB”), successor-in-interest to the Federal Deposit Insurance Corporation, as receiver for The Howard Savings Bank (the “Howard”) for a stay pending its appeal from the November 10, 1994 order of this court. The November 10, 1994 order authorized debtors to complete a sew...
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OPINION ON DEBTORS’ MOTION TO MODIFY CLAIM On this motion, debtors, Edwin Arvelo, Jr. and Carmen Nydia Arvelo, seek to reduce the claim of Chemical Mortgage Company (“Chemical”). Debtors assert that Chemical, as an undersecured creditor, is not entitled to post-petition interest on pre-petition ar-rearages. FACTS AND PROCEDURAL HISTORY On December 14, 1990, Edwin Arvelo,...
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OPINION Abdellah Benjelloun (the “Plaintiff’) seeks a declaration that the $325,000 indebtedness allegedly owed him by Mitchell Robbins (the “Debtor”) is nondischargeable under section 523(a)(2) of the Bankruptcy Code, which concerns debt obtained by use of a false financial statement. The Debtor moves for summary judgment. The Plaintiff also moves for summary judgment on all aspects ...
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ORDER GRANTING IN PART AND DENYING IN PART DEBTORS’ “MOTION TO AVOID LIEN ...” This contested matter was submitted for decision on agreed facts and briefs. Upon consideration thereof, and of the record herein, this Court, pursuant to F.R.B.P. 7052 and 9014, finds, concludes, and orders as follows. Procedural history of the matter is included in “Findings of Fact.” FINDINGS O...
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MEMORANDUM OPINION I. INTRODUCTION The United States Trustee (“UST”) charges fees based on “disbursements” made by chapter 11 debtors. In these related cases the UST alleges that the Debtors underpaid fees because they did not count transfers among various Debtors themselves as “disbursements.” The Debtors and two of their largest creditors objected to the UST’s interpretation of...
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MEMORANDUM DECISION AND ORDER Pending before the Court are motions to dismiss three of the many adversary proceedings filed pursuant to 11 U.S.C. § 547 1 by the chapter 7 trustee in this converted case. Resolution of the legal issue raised by the motions to dismiss that assert these proceedings are filed out of time, hinges upon the interpretation of § 546(a). In this factual v...
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OPINION INTRODUCTION This action was commenced by the filing of an Adversary Complaint and an Order to Show Cause by the Chapter 7 trustee, John Bracaglia, and by First Fidelity Bank, N.A. (“First Fidelity”), an undersecured creditor of debtor. The complaint seeks various types of relief including the voiding of fraudulent transfers and the substantive extension and consolida...
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DECISION AND ORDER DENYING MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.’S, REQUEST FOR RELIEF AFTER RECONSIDERATION OF DECISION AND ORDER DATED NOVEMBER h, 1993 Before the Court is the Motion for Reconsideration filed by the law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (“Mintz Levin”), seeking relief from our November 4,1993 Order Setting Final Compensation in the amoun...
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ORDER DETERMINING FEES AND REQUIRING DISGORGEMENT Heard on September 1, 1994, on various fee applications, and on the Chapter 7 Trustee’s Motion to Disgorge funds prematurely paid to an administrative expense claimant, Perrault Farms. The relevant facts, as follows, are undisputed: On February 27, 1990, Kingston Turf Farms filed a Chapter 11 petition, and nine months later, on No...
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MEMORANDUM OF DECISION Plaintiff Cocolat, Inc. (“Cocolat”) seeks to avoid as a preference a $10,000 payment (the “$10,000 Payment”) made to defendant Fisher Development, Inc. (“Fisher”) before the commencement of the above-captioned bankruptcy case. Fisher denies that the transfer was preferential. Fisher also claims defenses pursuant to 11 U.S.C. §§ 547(c)(1), (2), and (6). The Court con...
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*385 OPINION Introduction Sharon Steel Corporation, Sharon Specialty Steel, Inc., and Monessen, Inc. (collectively “Debtor”) each filed a separate voluntary Petition under Chapter 11 of the Bankruptcy Code on November 30, 1992 (the “Petition Date”). Pursuant to Order dated December 3, 1992, the three eases are being jointly administered. The -within Complaint in...
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ORDER This matter was heard November 14,1994, on motion by Debtors Gregory J. Carlson and Kathy L. Carlson for an order finding Ramsey County Community Human Services in contempt for violation of the 11 U.S.C. § 362 stay. Appearances were noted on the record. The Court, having reviewed the pleadings and briefs, heard arguments, and otherwise being fully advised in the matter, now makes th...
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS OR TRANSFER ADVERSARY PROCEEDING FOR IMPROPER VENUE The foreign representatives (the “Liquidators”) of The Orion Insurance Company PLC (“Orion”), which is undergoing insolvency proceedings in the United Kingdom, filed this ancillary proceeding pursuant to 11 U.S.C. § 304. As discussed in more depth below, venue appears to be based on...
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OPINION COMES NOW before the Court for consideration the Pee Applications of Winstead, Sechrest & Minick, P.C. (“WSM”), counsel for the Chapter 7 Trustee, Alan D. Sibarium (“Trustee”) in the above referenced cases. These Applications are being consolidated for the purposes of this opinion because they involve the same applicant, WSM, and raise the same issue. This opinion constitutes ...
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OPINION SUPPLEMENTING BENCH DECISION DENYING NBD BANK’S MOTION FOR RECONSIDERATION OF COURT’S DISMISSAL OF ADVERSARY PROCEEDINGS I. ISSUE These two adversary proceedings principally raise procedural issues relating to standing to litigate: Once bankruptcy is commenced, may an individual creditor file or continue a lawsuit to recover alleged preferences, fraudulent conveyances or ...
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MEMORANDUM OPINION Several matters are before the court. Plaintiffs Mini-Miners, Inc., Robert Rear-don, and Robert Kelly have moved to dismiss debtors’ counterclaim against them and to voluntarily dismiss their own complaint objecting to the dischargeability of certain debts. In support of their motion, plaintiffs argue that the counterclaim must be dismissed because the right to...
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MEMORANDUM OF DECISION ON MOTION TO DISMISS CASE OR TO GRANT RELIEF FROM STAY AND OBJECTION TO CONFIRMATION OF PLAN I. ISSUE The dispositive question before the court is whether a prepetition default or violation of a due-on-sale mortgage clause can be “waived” through the confirmation of a Chapter 13 plan. The debtor contends that confirmation of her plan will override a mortgagee’s ri...
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MEMORANDUM OF DECISION Before the Court is a motion by the Debt- or to dismiss his involuntary bankruptcy proceeding because of an insufficient number of petitioning creditors. As discussed below, the motion is denied. On May 2, 1991, the marriage of Debtor William Hopkins, IV, (“Hopkins”) and creditor Linda Cady (“Cady”) was dissolved by a judgment in Maine state court. Pursuant to this ju...
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MEMORANDUM OPINION AND ORDER On November 2, 1994, the plaintiff, Charles N. White Construction Company (“White Construction”), filed a Motion for Summary Judgment on its Complaint for Declaratory Judgment against the defendants listed herein. White Construction seeks a declaration in its favor that (1) the Biloxi Belle II Casino and the Southern Belle Casino do not constitute “vessels...
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OPINION A. INTRODUCTION The instant contested matter is an Objection (“the Objection”) presented by the Official Unsecured Creditors’ Committee (“the Committee”) of AFTER SIX, INC. (“the Debtor”), on behalf of the reorganized Debt- or, to an unsecured Proof of Claim (Claim No. 320) (“the Claim”) filed by Corestates Bank, N.A., as successor to the Philadelphia National Bank (“...
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DECISION ON MOTION FOR SUMMARY JUDGMENT This matter comes before the Court upon a motion by Eastern Motor Corporation (“Eastern”) to compel John’s Meat Emporium, Inc. (the “Debtor”) to pay it an administrative expense of $16,627.20 pursuant to section 503 of the Bankruptcy Code, 1 for the post-petition use of two of its 1987 GMC vans. At a hearing on January 27,1994, this C...
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*979 MEMORANDUM AND ORDER ON COMPLAINT TO SELL REAL PROPERTY FREE AND CLEAR OF THE INTEREST OF CO-OWNER The defendant challenges the constitutionality of § 363(h) and (j) of the Bankruptcy Code. For the reasons that follow, I conclude that those subsections are constitutional. BACKGROUND The plaintiff is the chapter 7 trastee in this case and commenced this adversary pr...
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OPINION Before the Court is Debtors’ Second Amended Chapter 13 Plan and the Objection to Confirmation of Debtors’ Second Amended Chapter 13 Plan filed by General Casualty Insurance Company, Inc. (“General Casualty”). The Plan provides for plan payments over 48 months in an amount of $296.54 for 17 months, then $259.00 for the remaining 31 months. The Plan proposed to pay approximately 20% of ...
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OPINION The principal question in this ease is whether section 546(e) of the Bankruptcy Code bars a trustee from recovering as a fraudulent conveyance transfers made by a stockbroker pursuant to a reverse repurchase agreement used to facilitate a leveraged buy out. I conclude that there are no genuine issues of material fact and that section 546(e) bars trustee’s action, and therefore grant sum...
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*11 OPINION Introduction. Before the Court is a Motion of the above named debtor, Brandywine River Hotel, Inc. (“Brandywine Hotel”) seeking a determination that putative creditor Suburban Federal Savings Bank (“Suburban Federal”), has no interest in the revenues and/or rents generated from Brandywine Hotel’s operations or, in the alternative, for permission to use ca...
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SUPPLEMENTAL OPINION 1 On July 29, 1986, this Court referred these adversary proceedings to the Interstate Commerce Commission [“I.C.C.”] for a determination as to whether the assessment of rates claimed by the plaintiff constituted an unreasonable practice or whether the rates themselves were unreasonable in violation of 49 U.S.C. § 10701(a). Now, the defendants in these a...
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DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT The question presented is whether Tenns-co violated the anti-discrimination provisions of 11 U.S.C. § 525(b) 1 when it assessed demerits against debtor for missing work to attend her meeting of creditors. Tennsco did not violate § 525(b). The following are findings of facts and conclusions of law. Fed.R.Bankr.P. 7052. I ...
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ORDER DENYING MOTION TO DISMISS COMPLAINT This matter is before the Court on the defendant-debtor’s motion to dismiss a complaint seeking to determine the non-dis-chargeability of a debt (the “Motion”). This proceeding arises in a case referred to this Court by the Standing Order of Reference entered in this District on July 16, 1984 and is determined to be a core proceeding pursuant to 2...
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MEMORANDUM OF DECISION Background. Plaintiff, a Chapter 7 Trustee, alleges that Richard S. Maddalena (“Defendant”), the son of Richard J. Maddalena (“Debtor”), received an avoidable fraudulent conveyance of the Debtor’s interest in a promissory note under applicable California and federal bankruptcy law. The action was tried to the Court in Los Angeles on November 18, 1994, with the undersi...
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DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT In 1987 and 1988, Dexter Ellerbee repeatedly libeled Dexter Mills. Mills sued in state court and won a judgment for punitive damages and attorney’s fees, so Ellerbee filed a bankruptcy petition. Mills seeks a ruling from this court that the judgment is for a willful and malicious injury and thus is not dischargeable. *734 ...
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MEMORANDUM OPINION AND ORDER In this action plaintiff objected to discharge of a debt arising from an automobile accident. Defendant did not file an answer but she appeared at trial on January 9, 1995 under subpoena from plaintiff and represented herself. Plaintiffs motion for default judgment was denied and the case was tried on the merits. Plaintiff and her insurance company co...
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DECISION AND ORDER Preliminary Statement Prior to its making the instant motion *709 (“Motion”), 1 mortgagee CrossLand Federal Savings Bank (“Bank”) obtained relief from the automatic stay to proceed with its state court foreclosure action. The debtor (“Debt- or”) 2 then moved before this Court for a determination of the allowed amount of the Bank’s...
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DECISION ON MOTION FOR AN ORDER FINDING A VIOLATION OF THE AUTOMATIC STAY PURSUANT TO SECTIONS 362(a)(3), 362(a)(7) and 362(h) OF THE BANKRUPTCY CODE This matter is before the Court pursuant to a motion by Robert J. Wicks and Edith M. Wicks (the “Debtors”) under Sections 362(a)(3), 362(a)(7) and 362(h) of the Bankruptcy Code for an Order finding the Town of Hempstead Employees Federal Cre...
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ORDER DENYING COMPLAINT TO RE-CHARACTERIZE OR EQUITABLY SUBORDINATE THE CLAIM OF MARY W. IRWIN This matter is before the Court on the complaint filed by Central Cooperatives, Inc. (Central) requesting that the Court recharac-terize or in the alternative equitably subordinate the unsecured nonpriority claim filed by Mary W. Irwin, a/k/a Mary L. Irwin. A hearing was held on Octob...
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OPINION A. INTRODUCTION The issue presented by the instant joint Chapter 13 ease is whether a plan which contemplates nominal payments and the sale of the Debtors’ realty within an indeterminate period can be confirmed. Since the Debtors’ Amended Plan before us (“the Plan”) is vague in relating any specific terms or commitments of the Debtors and this court has indicated that...
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MEMORANDUM OPINION At Orlando, in said District on the 6th day of January, 1995, before Arthur B. Briskman, Bankruptcy Judge. This matter came before the Court on the Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted by First Union National Bank of Florida (“First Union”), and the Trustee, Jerald Ro-sen’s Memorandum of Law in Opposition to Defendant, First Unio...
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REASONS FOR ORDER This matter came before the court on September 28, 1994 as a hearing on the motion of the United States of America, defendant, to dismiss. (PI. 17). The court took the motion under advisement at the hearing. The court has reviewed the record, the pleadings, and the applicable law, and makes the following determinations. A. Background The Chapter 11 proceedings of Inter...
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MEMORANDUM OPINION AND ORDER This is the court’s Opinion on the contested objection to proofs of claim filed by Socorro Pando and others, 17 in number. Counsel agree that the only legal issue is whether the publication notice of Rexene’s bar date is sufficient to sustain Rexene’s objection. The parties requested the court to decide the issue on the pleadings found at docket numbers 861, 862, 86...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon Complaint to Determine Tax Related Liability, Dischargeability, Equitably Subordinate Penalties and for Turnover of *977 Property. Plaintiff and defendant have stipulated to dismissal of all the counts that do not relate to dischargeability under 11 U.S.C. § 523(a)(1) 1 P...
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MEMORANDUM OPINION AND ORDER NO. 238 AWARDING FINAL FEES AND EXPENSES TO THE UNOFFICIAL COMMITTEE Counsel for the Unofficial Committee of 13)4% Noteholders, Berlack, Israels & Liber-man (“Berlack”), seek compensation of $1,094,910.50 1 and reimbursement of expenses of $172,036.78 incurred in connection with work performed in the Envirodyne Industries, Inc. (“Debtors”) bankr...
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*910 MEMORANDUM OF DECISION Chapter 13 Debtors William and Linda Siverling object to a claim made by the Internal Revenue Service (hereinafter the “Service”) on grounds that the Service failed to assess Debtors’ tax liability within the applicable limitations period. The Service opposes Debtors’ objection on the grounds that a timely assessment was made although in violation ...
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MEMORANDUM OPINION CROSS MOTIONS FOR SUMMARY JUDGMENT The matters before the court are the cross motions for summary judgment of Defendant State of California and Plaintiff Envirodyne Industries, Inc. (“Envirodyne” or “Debtor” or “Plaintiff’). In this adversary proceeding, Envirodyne seeks to equitably subordinate those shareholders of pre-merger Enviro-dyne who have not tend...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR SANCTIONS UNDER 28 U.S.C. § 1927 The instant Adversary Complaint relates to the bankruptcy proceeding of Thomas R. Volpert, Jr. (“Debtor”), filed under Chapter 7 of 11 U.S.C. § 101, et seq. (the “Bankruptcy Code”). Plaintiff John Volpert, Sr. (“Plaintiff’) filed this Adversary against Debtor seeking to bar dischargeabili...
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DECISION ON ORDER GRANTING MOTION OF CHAPTER 11 PLAN TRUSTEE FOR SUMMARY JUDGMENT AS TO ISSUES PERTAINING TO 11 U.S.C. § 547(b) (Doc. 15-1) 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...
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MEMORANDUM OF OPINION DENYING IN PART, AND GRANTING IN PART, MOTION TO DISMISS Scott D. Field, Trustee and Plaintiff (“Trustee”) filed this Complaint against Montgomery County, Maryland (“County”) to recover as fraudulent conveyances several real property tax payments made by Anton Motors, Inc. (“Debtor”) during the three year period prior to the filing of Debtor’s bankruptcy petition...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiffs seeking the Court to determine the dischargeability of individual income taxes (1040 taxes) owed by them for the taxable years of 1983 through 1989. The trial in this matter was held on the 20th day of January, 1995. Scott Crosby appeared for the United States of America and Steven Wilson appeared for the ...
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MEMORANDUM Before the court is the Motion for Summary Judgment by the Trustee (Fil. # 8), the Opposition by Myrtle Grimminger, and the Motion for Summary Judgment by Myrtle Grimminger (Fil. # 9). This case presents the interesting question of whether a creditor receives a voidable preference by obtaining a judgment, within ninety days of bankruptcy, setting aside a fraudulent conveyance by th...
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MEMORANDUM OF DECISION On September 8, 1994, this court held a hearing on the petition of Barry Anthony Taylor as Receiver of Burns Philp Trustee Company (Canberra) Limited (“Receiver” or “Taylor”) for relief under Bankruptcy Code section 304 (“304 Petition”). 1 The Petition was timely controverted by Peter D. Clarke II (“Clarke”) who, the Receiver alleges, has or controls ...
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MEMORANDUM Before the court is the Chapter 7 trustee’s Objection to Claim of Lincoln Telephone and Telegraph Company (“LT & T”) (Fil. # 177). I reject the trustee’s argument that 11 U.S.C. § 366 limits the right of a utility *313 company to assert an administrative claim, and conclude that the post-petition claim of LT & T for telephone and advertising services...
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Opinion The question in this case is whether a debtor in possession can avoid pre-petition ad valorem tax liens on personal property. Various tax creditors 1 (the Taxing Units) claim pre-petition liens on certain inventory and equipment previously located in three stores closed after the filing of this Chapter 11 case by the debtor in possession, Winn’s Stores, Inc. (Winn’s). S...
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OPINION This matter is before the Court upon the Objection of St. Edmond’s Savings and Loan Association (“the Association”) to the Application of John D. Maida Associates (“Maida”) for Allowance of Interim Compensation and Reimbursement of Expenses (“the Application”). A hearing was held on July 18, 1994, after which the Association filed a memorandum of law in support of its position...
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ORDER Heard on September 28, 29, and October 4, 1994, on: (1) the Trustee’s Motion to adjudge the Debtor in Contempt, and for the Imposition of Sanctions Against the Debtor; (2) the Trustee’s Motion for Judgment on the Pleadings; and (3) the Debtor’s Motion for Leave to File an Amended Answer to the Amended Complaint. We will address the pleadings in the order in which they appear above. Motio...
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ORDER GRANTING RELIEF FROM STAY On November 18, 1994, a “final hearing” was held on P & M Associates’ Motion for Relief from the automatic stay. 1 Upon consideration of the evidence, the applicable law, and the arguments of counsel, we make the following findings and conclusions: TRAVEL 1) On August 6, 1984, Catherine Duffy Petit executed a mortgage...
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MEMORANDUM OPINION INTRODUCTION Before the court is the objection of the Trustee, Michael B. Joseph, Esquire, to the claim of Mellon Bank (DE) National Association (“Mellon”). Mellon asserts that it has a secured claim in the amount of $20,290.23, the security being a mortgage on certain real *736 property owned by Jon B. and Susan A.Q. Poteat (“the Debtors”). The Trustee objects to Mellon’...
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ORDER Heard on September 20, 1994, on the fee applications of: (1) Jason Monzack, Esq., the Chapter 7 Trustee, in the amount of $29,873, and Mr. Monzack as Trustee’s counsel, in the amount of $6,667; (2) Raymond Raiche, Accountant for the Debtor, in the amount of $2,231; (3) Bingham, Dana & Gould (“BD & G”), co-counsel for the Debtor, in the amount of $55,839 in fees and $4,109 in exp...
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MEMORANDUM I. PROCEDURAL BACKGROUND The matter before the Court is the Motion for Partial Summary Judgment filed by the Plaintiff, Chapter 13 Debtor Earle K. Whitley (the “Plaintiff’ or the “Debtor”), in his adversary proceeding against Rhodes Financial Services, Inc. (the “Defendant” or “Rhodes”), which adversary proceeding was filed on January 6, 1994. In addition to seeking damage...
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ORDER OVERRULING OBJECTION TO CLAIM Heard on December 1( 1994, on the Debtors’ Objection to Claim No. 1 filed by Anita Blazier. On March 2, 1982, Kevin Lee and Blazier were involved in an automobile accident. The Lees were uninsured, and on March 21, 1984, Ms. Blazier filed suit against Kevin Lee in the Rhode Island Sixth Division District Court. On August 30, 1988, a default judgment was entere...
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OPINION Introduction. Before the Court is the Motion of V. DiFrancesco and Sons (“DiFrancesco”) to have the Court estimate an unsecured claim it asserts against the above-named Debtor, West Chestnut Realty of Haverford, Inc. (“West Chestnut”) pursuant to 11 U.S.C. § 502(c)(1), and thereafter allow the same for the limited purpose of voting on West Chestnut’s currently pending...
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OPINION A INTRODUCTION The instant motion seeks to have this court determine that counsel who has solicited the representation of over 100 former employees of a closed hospital debtor be permitted to file a class proof of claim for all other former employees, estimated by the Movants at about 700 additional persons, and effectively extend the bar date for employee credito...
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MEMORANDUM OPINION The United States, on behalf of its agency, the Internal Revenue Service, moved to abandon part of debtor’s federal income tax *357 refund from the estate and to lift the automatic stay so that the refund could be applied to a liability of the debtor, Franklin Savings Corporation (“Franklin” or “the debtor”). 1 However, before it filed the ...
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MEMORANDUM OF DECISION Debtor objects to the Internal Revenue Service’s claim for $24,805.81 on the grounds that the claim is unsecured. Debtor admits to the amount of the claim for $24,805.81. The issue before the court is whether the Internal Revenue Service (hereinafter “the Service”) can attach a lien to Debtor’s interest in a pension plan provided under the state of California’s...
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*453 DECISION AND ORDER PRELIMINARY STATEMENT Before the Court 1 is a motion (“Motion”) by Kenneth Giordano, the above-referenced debtor (“Debtor”), for an order avoiding judicial liens held by Midlantic Commercial Leasing Corp. (“Midlantic”) and Polychrome Corporation (“Polychrome”). Debtor alleges the judicial liens must be avoided since they impair the homestea...
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MEMORANDUM DECISION Preliminary Statement Before the Court 1 is a motion which brings forth a familiar issue: whether to allow a debtor to amend the bankruptcy schedules to add a debt not originally included in the petition, and to grant the debtor a discharge of the debt. One vexing aspect of this motion has created the problem in this and many of our other cas...
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MEMORANDUM DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION Martin R. Shugrue, Jr. (the “Trustee”), as Trustee of the estate of Eastern Air Lines, Inc. (“Eastern”) moves this Court for partial *200 summary judgment ordering the turnover of approximately $1.8 million held by Chemical Bank, Inc. (“Chemical”). Chemical contends that...
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*938 MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Complaint to Determine Dis-chargeability and Request for Injunction filed by David Merle Durgin (“debtor”). The debtor appears by and through his attorney, Terry S. Stephens. Charlene Durgin (“defendant”) appears pro se. A pretrial conference was held on March 11, 1994; and upon the subsequent filing of briefs ...
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OPINION AND ORDER DENYING MOTION TO “CORRECT CLERICAL ERROR, OR IN THE ALTERNATIVE, TO REOPEN BANKRUPTCY CASE” This matter is before the Court upon Ford Consumer Finance Company, Inc.’s (“Lender”) “Motion to Correct Clerical Error, or in the Alternative, to Reopen” the bankruptcy case of Pamela L. Reed (the “Debtor”). The Court finds that Lender’s motion is not well taken and should be denied. ...
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OPINION AND ORDER GRANTING COMPLAINT FOR TURNOVER OF PROPERTY AND ORDERING TURNOVER OF FUNDS This matter is before the Court on Trustee John J. Hunter’s (the “Trustee”) complaint seeking turnover of property of the bankruptcy estate of Fred J. Burkholder (the “Debtor”) in possession of the Debtor’s attorney, Gordon R. Barry (the “Debtor’s Attorney”). The United States of America, Internal...
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MEMORANDUM OPINION The defendant, Pennsylvania Higher Education Assistance Agency (PHEAA) has filed a motion for summary judgment which is presently before this court. In substance, however, the parties have submitted this matter to the court as a trial upon stipulated facts. 1 FACTS On August 1, 1994, the parties filed their stipulation as to the facts, herein. The parties have stipulate...
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ORDER THIS CAUSE is before the Court upon three motions filed by Peter R. Emanuel: (1) First Motion to Compel Partial Distribution by the Trustee to Emanuel, filed on October 4, 1993; (2) Addition to Emanuel’s First Motion to Compel Trustee to Distribute, filed on November 21, 1994; and (3) Motion to Order Dismissal of Trustee, filed on November 21, 1994. I. ...
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MEMORANDUM ON MOTIONS TO AVOID LIENS The court, for the purpose of resolving common issues, has consolidated two motions, one filed in the case of the joint debtors Randall Mark French and Angela Lynn French, and the other filed in the individual ease of Billie J. Shultz. In the French case, the debtors, after filing the petition commencing their Chapter 7 case o...
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MEMORANDUM OPINION ON CONTEMPT OF COURT BY JUDITH HERSKOWITZ AND ORDER OF CONTEMPT This shall constitute the court’s sua sponte opinion on contempt of court committed by Judith Herskowitz in the presence of the undersigned. This court has had to remove Ms. Herskowitz from the courtroom on three occasions, due to her disruptive behavior and refusal to abide by instructions of the court. In a...
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MEMORANDUM OPINION Thomas Woodall, Jr. (hereinafter “Debt- or”) filed a petition under Chapter 7 of the United States Bankruptcy Code on March 12,1992. On October 9,1992, Wilcoxon Construction, Inc. (hereinafter “Wilcoxon”) filed a Complaint to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523(a)(2) and (a)(6). On March 8, 1993, Wilcoxon filed a Motion for Leave to Amend ...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon the debtors’ Motion for Summary Judgment, filed on December 28, 1994, to which the creditor Warehouse Paint responded on January 10, 1995. The issue before the Court is a simple one regarding property of the estate. Indeed, the Supreme Court has issued an opinion on the issue before the Court: whether a debtor’s in...
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OPINION OVERVIEW More than one year prior to filing a chapter 7 petition, the debtor and his wife trans *535 muted their joint ownership in their residence into the separate property of the wife. No contemporaneous recording of the transaction was performed, but within one year of the bankruptcy filing, the debtor executed and recorded a quitclaim deed to the residen...
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MEMORANDUM DECISION ROBERT D. MARTIN, Chief Judge. Ausman Jewelers, Inc. (“Ausman”) filed for chapter 11 bankruptcy on May 22, 1992. The case was converted to chapter 7 on July 12, 1993. Prior to filing, Ausman paid $4,330.39 to Aetna Finance Company d/b/a ITT Financial Services (“Aetna”) for the benefit of two of its customers. The chapter 7 trustee seeks to recover the payment as a preferen...
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*531 MEMORANDUM OPINION This matter is before the Court on the debtors’ Motion to Reopen and Motion to Avoid Lien, filed herein on April 18, 1994. The case was closed on November 20, 1992. The debtors filed their Motions for the purpose of avoiding a lien of Laurel Warehousing Company (“Laurel”), a creditor of the debtors. The ease was reopened by Order dated May 25,1994. Laurel filed a Res...
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MEMORANDUM Hearing was held on November 22, 1994, on Motion for Examination of Attorney Fee Agreement. Appearing on behalf of debtors was Bert Blackwell of McCook, Nebraska. Appearing on behalf of the United States Trustee was Sam King of Omaha, Nebraska. This memorandum contains findings of fact and conclusions of law required by Fed.Bankr.R. 7052 and Fed.R.Civ.P. 52. This is a core ...
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ORDER RE TRUSTEE’S OBJECTION TO PLAN AND REQUEST FOR TURNOVER OF TAX REFUNDS FOR SECOND AND THIRD PLAN YEARS I. INTRODUCTION. Debtors Carl F. and Denise D. Kuehn (the “Kuehns” or “Debtors”) filed their Chapter 13 petition and their Chapter 13 Plan (the “Plan”) on March 21, 1994. The Chapter 13 Trustee, Ralph M. McDonald (the “Trustee”), filed his recommendation regarding the Plan on July 20, ...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION OF PLAN THIS MATTER came on for hearing for determination of the adequacy of the Disclosure Statement for the Plan for Adjustment of Debts dated April 20, 1994 (“Disclosure Statement”) and confirmation of the Amended Plan for Adjustment of Debts dated September 6,1994 (the “Amended Plan”) filed by the City of Colorado Springs Spring Creek ...
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MEMORANDUM OF DECISION This case was commenced in 1986 under Subchapter IV of Chapter 11 of the Bankruptcy Code as a railroad reorganization case. At that time, the debtor operated a railroad in Northern California. Pursuant to the procedure set forth in section 1163 of the Code, Jerry E. Gregg was appointed trustee. In 1991, Gregg’s plan of reorganization was confirmed. The plan called for s...
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MEMORANDUM DECISION ON MOTION TO DISMISS AND CROSS-SUMMARY JUDGMENT MOTION ON AN ACTION TO AVOID PREFERENTIAL TRANSFER The Internal Revenue Service (“I.R.S.”) moved to dismiss, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure (“Fed. R.Civ.P.”) and Rule 7012 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”), the adversary proceeding filed by Stephen E. O’N...
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OPINION A. INTRODUCTION The instant adversary proceeding and a related motion in the Debtor’s main bankruptcy case present, at bottom, the issue of whether a debtor can have her Chapter 7 discharge challenged by a party who commences his efforts against her several months after the case has been closed, despite the fact that he received timely notice of the pertinent bankrupt...
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MEMORANDUM DECISION ON CONFIRMATION OF THE DEBTORS PLAN OF REORGANIZATION INTRODUCTION The matter before this Court is the confirmation of the plan of reorganization, as amended, filed by Woodmere Investors Limited Partnership (the “Debtor”). As more fully explained below, Connecticut Mutual Insurance Company (“Connecticut Mutual”), the first mortgagee of the Debtor’s single ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case centers on the Trustee’s Application to sell real property and the Defendants’ *170 defense of an alleged mistake in the conveyance of the real estate to the Debtor and his spouse. JURISDICTION The Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Loc...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Objection of the Turón State Bank to Debtors’ Claimed Exemption. A hearing was held on October 12, 1994, and the Court took the matter under advisement. Nolan Clark Zink and Jo Ellen Zink (“debtors”) appeared in person and by and through their attorney, William H. Zimmerman, Jr. Turón State Bank (“Bank”) appeared ...
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DECISION AND ORDER This matter is before the Court pursuant to the hearing on the Disclosure Statement filed by 354 East 66th Realty Corp. (the “Debtor”). In its Plan, the Debtor proposes to apply the adequate protection payments already made to Coolidge New York Equities Limited Partnership (“Coolidge” and/or the “Secured Creditor”) to reduce its secured claim against the Debtor. If the adeq...
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OPINION James H. Barnhill (the “Trustee”) brings this complaint against Elaine J. Vaudreuil (the “Defendant”), the former wife of Lewis J. Busconi (the “Debtor”), to avoid as preferential certain transfers made pursuant to the parties’ divorce judgment. All but one of the transfers occurred between ninety days and one year prior to the Debtor’s chapter 11 filing, so they are voidable ...
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At issue in this Chapter 7 proceeding is whether sovereign immunity can shield the State of New York and its departments from liability under 11 U.S.C. § 549 to disgorge unauthorized post-petition transfers. Implicated in this analysis are the provisions of 11 U.S.C. § 106, which previously provided a limited waiver of sovereign immunity. As enacted on October 22, 1994, the recent amendments to...
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MEMORANDUM Hearing was held on confirmation of plan. Appearing on behalf of debtors was John Harmelink of Harmelink & Fox Law Office, Yankton, South Dakota. Appearing on behalf of FmHA was Laurie Barrett of Omaha, Nebraska. Appearing on behalf of Osmond Coop was William Bianco of Kennedy, Holland, DeLaey & Svoboda, Omaha, Nebraska. Appearing as trustee was Richard Lydick of Omaha, Nebraska. Thi...
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BACKGROUND The Debtor in Possession in this Chapter 11 case, Dansville Properties, Inc., (the *175“Debtor”) has made a motion to be authorized to retain the firm of Lacy, Katzen, Ryen & Mittleman (“Lacy, Katzen”) as attorneys for the Debtor. The required Affidavit of No Conflict filed by Lacy, Katzen with the Motion sets forth at paragraph 3 that: The Debtor owes Lacy, Katzen, Ryen & Mittleman $12...
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MEMORANDUM OPINION AND ORDER I thought I had written what I intended to be my last opinion; however, by the necessity of this one, we are reminded the law is fresh everyday. New ground always abound, and we as judges find challenge at every session. Here the debtor, Tracy Marie Gibson, filed a dischargeability complaint against the Commonwealth of Virginia’s State Education Assis...
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MEMORANDUM The matter before the Court is the Adversary Complaint filed on behalf of Daryl K. Hartley (“Plaintiff’) requesting a determination of dischargeability of certain debts. The Plaintiff has requested that attorney fees awarded to him as counsel to the Debtor’s ex-wife in her paternity proceeding against Garland Lawson Townsend (“Debtor”) be declared nondischargeable as in the nature ...
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ORDER This matter is before the Court on Mr. and Mrs. Kennedy’s (“Kennedys” or “Debtors”) request for confirmation of their Chapter 13 plan. Pearl Finance Co. n/k/a Carmel Investments, Inc. (“Pearl” or “Pearl Finance”) objects. This is a matter over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This is a core ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Adversary proceeding relates to the bankruptcy case of Bullet Jet Charter, Inc. *595 (“Bullet Jet” or “Debtor”), filed under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. The action arises out of a contract, executed pre-petition, for sale of an aircraft by Bullet Jet to Software. Bullet Jet did not fu...
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MEMORANDUM OPINION Dressel Associates, Inc. (hereinafter “Dressel”) has moved pursuant to 11 U.S.C. § 362(d)(1) and (2) for relief from the automatic stay so that it may exercise its rights under state law with respect to collateral of debtor Beaver Valley Builder’s Supply, Inc. (hereinafter “BVBS”) that secures an obligation to Dressel. First Commerce Investment Company (hereina...
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OPINION RE DISMISSAL OF CASE UNDER 11 U.S.C. § 109(d) The sole issue before this Court is whether a spendthrift trust qualifies as an eligible debtor under 11 U.S.C. § 109(d). 1 *675 Because the trust in question was not created for business purposes and does not constitute a “business trust” under California law, this Court holds that it is not eligible to file a bank...
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ORDER AND JUDGMENT DENYING COMPLAINT PURSUANT TO 11 U.S.C. § 523(a)(2)(A) This matter came before the Court on the complaint of Trustmark National Bank (“Trustmark”) to determine the discharge-ability of a debt owed by Johnny Glenn Curtis (“Debtor” or “Curtis”) to Trustmark pursuant to 11 U.S.C. § 523(a)(2)(A). This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 157(b)(2)(...
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MEMORANDUM OF DECISION History of Case Debtor filed a bankruptcy case under Chapter 13 on May 27, 1992. He owned investment property located in Fairfax County, Virginia, said to be worth over $300,000 subject to a lien securing a $100,000 obligation to Independence One Financial Services, and a 1990 Ford Taurus wagon subject to a lien securing Fort Motor Credit. Both secured loan...
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*728 ORDER OVERRULING TRUSTEE’S OBJECTION TO EXEMPTION This cause came before the Court on January 18, 1995, upon the Trustee’s, Soneet R. Kapila’s Objection to Debtor’s, Gifford R. Dean’s (“Dean”) claim of exemption of Dean’s interest in a Cooperative Apartment. For the following reasons, this Court overrules the Trustee’s Objection and concludes that Dean’s interest is exempt as homestead...
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OPINION This is an action in which the trustee has sued Wilmington Savings Fund Society, F.S.B. (“WSFS”) to recover alleged preferential transfers made to it by the Debtor, Austin Truck Rental, Inc. (“the Debtor”). The proceeding is before the Court upon a motion to dismiss filed by WSFS. WSFS contends this adversary proceeding must be dismissed because the limitations period set fort...
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DECISION ON MOTION TO DECLARE TAX OBLIGATION DISCHARGEABLE At issue is whether a chapter 7 debtor who has failed to notify the New York State Department of Taxation (the “State”) of an *210 assessment by the Internal Revenue Service (the “IRS”) should have his obligation discharged for the additional state tax due. 1 I. In February, 1987, the IRS assesse...
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ORDER OVERRULING OBJECTION TO EXEMPTION The above-entitled matter came on for hearing before the undersigned on the 9th day of November, 1994, on a objection by the trustee to claimed exempt property. Appearances were as follows: Julia Christians as and for the trustee; and T. Chris Stewart for the debtors, Edward and Connie Dulas (collectively “the Debtors”). FACTUAL BACKGROUND In 1984...
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MEMORANDUM OPINION This matter is before the Court on a motion filed by the plaintiffs, Judith Thompson, trustee, and Young Min Yu, requesting permission to amend their complaint and add SouthTrust Bank, John Edward Dodd and Iris Janet Dodd as party-defendants. South-Trust Bank, John Edward Dodd and Iris *274Janet Dodd filed objections to the motion. The hearing in this matter was held on the 20th...
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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 AND FACTUAL BACKGROU...
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OPINION Debtors Jeffrey and Amy Moore (“debtors”) filed this turnover action to recover wages that were withheld by their employer within 90 days of bankruptcy pursuant to a wage deduction order obtained by creditor General Motors Acceptance Corporation (“GMAC”). In their complaint, the debtors allege that a total of $487 was obtained through a wage deduction proceeding within the 90-day prefer...
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OPINION A INTRODUCTION Presently before this court in the voluntary Chapter 11 bankruptcy case of UNION MEETING PARTNERS (“the Debtor”), a partnership which owns certain realty, is the Debtor’s request that we confirm its Fourth Amended Plan of Reorganization (“the Plan”) over the objection of the Debtor’s first mortgagee, Lincoln National Life Insurance Company (“Lincoln...
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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 AND FACTUAL BACKGROU...
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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 *640 U.S.C. § 157(b)(2)(J), which the Court may hear and determine. ...
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DECISION and ORDER ON § 543 MOTION BY CLOUGH CREEK, LTD. This is a Chapter 11 case involving a 164-unit residential apartment complex owned by the debtor. The debtor is a New Jersey limited partnership of which the general partners are brothers Joel and Elliot Lei-bowitz. The complex is located at 6375 Clough Pike in Anderson Township, Hamilton County, Ohio. It will hereafter be re *873 ferre...
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DECISION Before the court is a complaint by a Chapter 7 debtor to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(5). The parties submitted this matter for decision by the court based upon an agreed stipulation of fact and legal memoranda. 1 This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference ente...
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DECISION ON OBJECTION TO CLAIM OF NORPAK A claim was filed by Norpak Corporation (“Norpak”) in these consolidated Chapter 11 cases. Debtors have filed an objection to the claim. The matter came on for a pretrial conference at which time the court was informed that the parties were engaged in settlement discussions. Subsequently we were informed via a joint letter from counsel that such ef...
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ORDER DISMISSING MOTION FOR TURNOVER OF PROPERTY OF THE ESTATE UNDER 11 U.S.C. § 542(b) AND DENYING MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT This matter is before the Court on the “Motion for Turnover of Property of the Estate Under 11 U.S.C. § 542(b) or, in the Alternative, Motion for Order to Show Cause why Defendants Should not be Held in Contempt” f...
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MEMORANDUM This matter came before the Court upon the Trustee’s complaint to revoke the Debtors’ discharge pursuant to 11 U.S.C. § 727(e)(1). 1 The Court, having reviewed the pleadings, heard the evidence, and being otherwise fully advised finds that the trustee has not proved that the debtors obtained their discharge through fraud and, therefore, the complaint should be dismissed. FACTS ...
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MEMORANDUM OPINION & ORDER This proceeding comes before the Court on motions by the debtor/defendant to dismiss as untimely the complaints to determine dis-chargeability of debt filed by Commonwealth Information Services (“CIS”) and Hartford Accident Indemnity Company (“Hartford”). The Court granted both motions to dismiss. This memorandum opinion and order elaborates on the prior ruling ...
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MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT The principal issue presented in this adversary proceeding is whether health benefits provided by a Union-created employee benefit trust to the Debtor’s employees are “new value ... for the benefit of the debtor” within the meaning of 11 U.S.C. § 547(c)(4), the “subsequent new value” defense, where the collective bargainin...
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ORDER ON OBJECTION OF UNITED STATES TRUSTEE TO CONFIRMATION OF CHAPTER 11 PLAN THIS CAUSE came on to be heard on January 12,1995, at the confirmation hearing on the Debtor’s First Amended Plan of Reorganization (the “Plan”). Objections to the Plan were filed by the United States Trustee (the “UST”) and by Curt Ogden Equipment Co. (“Ogden”), the largest creditor of this estate. Ogden, ...
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MEMORANDUM OPINION AND ORDER In this adversary proceeding, four of the defendants, C.U. Technologies, Inc. (CUT), Nanook Enterprises, Inc., The Computer Group, Ltd., and Armond Schroeder (“the CUT group”), move to dismiss pursuant to Bankruptcy Rules 7012(b)(1) and 7012(b)(6). The CUT group moves in the alternative to transfer venue to the United States District Court for the Central ...
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ORDER Came on for hearing confirmation of debtors’ amended plan under Chapter 13 of Title 11, United States Code, and the objection to confirmation filed by Norwest Financial Georgia, Inc. (“Norwest”). Norwest’s objection was filed in response to the original plan and motion, which proposed to avoid the lien of Norwest under 11 U.S.C. § 522(f): *751 5. Pursuant to 11 U.S.C. § 522(f), the ...
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ORDER This matter is before the Court on an objection filed by the debtor to the secured claims of American General Finance (American General) and First Family Finance Services (First Family). Oral arguments were presented to the Court on the 21st day of December, 1994. In 1982, the debtor executed a first mortgage to Whately, Davin & Company (now assigned to BancBoston) t...
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MEMORANDUM OPINION This matter is before the Court on motion by Dolores Jean Sumner (“Debtor”) to determine the value of security and the extent of a creditor’s allowed secured claim on residential real estate pursuant to 11 U.S.C. § 506. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(K). These findings of fact and conclusions of law are published in compliance with...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Petition in a Case Ancillary to a Foreign Proceeding filed by Hideki Kojima (“Petitioner” or “Mr. Kojima”), as trustee of the estate of the Grandote Country Club Co., Ltd., on October 25, 1994, the Answer thereto filed by Dwight Harrison and Grandote International Ltd. Liability Co. (the “LLC”) (collectively, the “Resp...
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OPINION REGARDING DEBTOR’S AMENDED MOTION FOR LEAVE TO ASSUME AMENDED EXECUTORY CONTRACT I. ISSUES In this chapter 11 case, should the court, pursuant to 11 U.S.C. § 363(b)(1), 1 approve a transfer of certain technology to an asserted insider buyer without the approval of a chapter 11 plan? Given the facts and circumstances, should the court order the appointment of a ...
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MEMORANDUM ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDERS, AND PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION The Plaintiff, Metropolitan Life Insurance Company (MetLife), initiated this adversary proceeding with the filing of its Complaint on January 23,1995, seeking damages and sanctions for the Defendants’, Alside Supply Cen...
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MEMORANDUM ON OBJECTIONS TO AMENDED EXEMPTIONS The court, for the purpose of resolving common legal issues, has consolidated two objections filed by the Chapter 13 Trustee, one in the joint case of the debtors Kevin S. Minor and Angela D. Minor, and the other in the individual case of Martin Blaine Mills. In both cases, the Trustee objects to exemptions claimed in lump sum awards of w...
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ORDER On January 13,1995, plaintiff filed a pleading in this matter entitled, “Motion to Proceed In Forma Pauperis” (“Motion”), stating that it is brought pursuant to 28 U.S.C. § 1915 and Fed.R.Bankr.P. 4(e)(2). Plaintiffs Motion and attached affidavit are sufficient under 28 U.S.C. § 1915(a) to demonstrate that plaintiff is indigent. There is no filing fee for this adversary proceeding. In acc...
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ORDER REGARDING SUMMARY JUDGMENT Before the Court are cross-motions for summary judgment filed by plaintiffs Meyer Fallas, Fred Fallas, William Cramer, and Malcolm Marcoe, and by defendant and debt- or, Bruce Barton Sehwager. The Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157(b)(1). This is a core proceeding. After reviewing the law and record, this Court conc...
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MEMORANDUM OPINION The matter before the court is Tandy Credit Corporation’s, a Division of Tandy Corporation, (“Tandy”) Motion for Summary Judgment against Oscar Martinez (“Martinez”). Tandy contends that it has a valid lien, pursuant to a security agreement signed by Martinez, on consumer electronics products purchased by Martinez on credit from one of its stores. As Martinez did no...
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*21 DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration are cross motions for summary judgment on the plaintiffs nondischargeability complaint. For reasons explained below, the plaintiffs motion for summary judgment will be granted. BACKGROUND FACTS The plaintiff, Old Republic Surety Company, as surety on behalf of the defendant-debtor...
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*238 ORDER RE TERMINATION OF ARBITRATION I. INTRODUCTION This adversary proceeding involves a failed arbitration attempt arising out of a dispute concerning the debtor’s purchase of securities. After more than 18 months since the entry of an order for arbitration, the parties have failed to begin their arbitration hearing. Consequently, the Court vacates the order referring ...
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OPINION I FACTS The debtor, Ramon F. Beltran (“Beltran”), filed for bankruptcy under Chapter 13 of the Bankruptcy Code (“Code”) 1 on February 4, *906 1992. The deadline for filing proofs of claim was June 18, 1992. The Chapter 13 plan was confirmed on November 3, 1992. Calmat Co. of Arizona (“CalMat”) filed its proof of claim for $61,754.53 on December 9, 1992. The Chapter 13 trustee,...
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MEMORANDUM OPINION Before the Court is the Complaint to Determine Dischargeability of Debt filed by Marion James Novark against Kenneth R. Sehelsteder. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(I). This is a core proceeding. Novark holds a judgment against debtor dated May 10, 1993, in a ease styled Marion James Novark v. Dick Moore, Ted R. Tiller...
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The principal question raised in this appeal is whether Appellant’s action alleging willful violation of the automatic stay was rendered moot by dismissal of the underlying bankruptcy case. We conclude that the action was not rendered moot and reverse the bankruptcy court’s order dismissing the action. FACTS On June 24, 1992, Betty Jean Davis (Appellant) filed an action in Fresno County Superior C...
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OPINION I PACTS Eli Sasson (“Sasson”) obtained a $3.8 million recourse loan from Bank of the West (“Bank”) in 1991. Sasson used the funds to construct a commercial shopping center in Montclair, California (“Property”). Early in 1992, Sasson defaulted on the loan and the Bank commenced a non-judicial foreclosure. The parties agreed to several continuances; however, by March 1993, the Bank re...
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MEMORANDUM OF DECISION RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. ISSUE The plaintiff contends in her motion for summary judgment that a judgment she received in state court is non-disehargeable under § 523(a)(2)(A) as a debt arising from the debtor-defendant’s fraud and that the state-court judgment should be given collateral estoppel effect in the bankruptcy court. The debtor resp...
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ORDER DENYING DEBTOR’S “EMERGENCY APPLICATION FOR A STAY OF EXECUTION ON THE ORDER GRANTING TRUSTEE’S MOTION TO REJECT EXECUTORY CONTRACTS On February 16, 1995, there came on for hearing the debtor’s “Emergency Application *689 for a Stay of Execution on the Order Granting Trustee’s Motion to Reject Executory Contracts ...” After hearing statements of counsel, the Court r...
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ORDER GRANTING TRUSTEE’S MOTION TO DISMISS CHAPTER 13 CASE AND DISMISSING CASE FOR FAILURE TO COMPLY WITH ORDER OF JANUARY 6, 1995 TO PAY FILING FEE After review of the file and debtors’ “3rd Revised Plan” filed January 17, 1995, the court finds that the Trustee’s motion to dismiss for failure to file a confirmable plan should be granted, and that the case should be dismissed for the additional ...
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ORDER DISMISSING CASE Heard on December 21, 1994, and January 4, 5, and 9, 1995, on the motion of R.S.S. Realty Trust, Inc. to dismiss this Chapter 11 case, or alternatively, to appoint a Chapter 11 Trustee. Based upon the pleadings filed, the extensive evidence presented, the arguments of counsel, and the record in this and *760 in prior proceedings involving many of the...
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DECISION AND ORDER Heard on July 28, September 1, and October 20,1994, on the Fee Application of Tobin & Company, accountant for the Debtor, and on the Chapter 11 Trustee’s Motion for Disgorgement of approximately $66,000 already paid to the Applicant without prior Court approval. The first two applications filed by Tobin were patently deficient, and at the close of both the July and ...
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OPINION AND ORDER DENYING IN FORMA PAUPERIS APPLICATION Pro se debtor Carolyn Ennis filed two notices of appeal without the required filing fees, but accompanied by two affidavits of financial status. There was no motion to proceed informa pauperis, but the affidavits reference such a motion, so debtors apparently seek to appeal two orders without paying the filing fees. Th...
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MEMORANDUM DECISION The matter before the Court involves issues which are important to all who deal with Chapter 11 debtors, including trade creditors and professionals. In this ease, the debtor was unable to reorganize under Chapter 11, and the proceeding was converted to one under Chapter 7. This matter came on for hearing on the noticed motion of the Chapter 7 trustee for an order requ...
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ORDER DENYING MOTIONS FOR STAY OF ORDER OF BANKRUPTCY JUDGE On January 17, 1995, debtor filed two motions for stay of order of bankruptcy judge. Both bear the caption of the main file. The motions seek a stay of various matters during appeal, including the order terminating the automatic stay, payment of filing fees, and payment of utility deposits. A. Order Terminating Automatic Stay The orde...
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ORDER GRANTING FRIEDELL MOTION TO TERMINATE AUTOMATIC STAY, DENYING DEBTORS’ MOTION FOR ADVANCE OF FUNDS, AND DENYING CONFIRMATION OF PLAN On December 19, 1994 in Kansas City, Missouri, the Court took up various matters, including the hearing on confirmation of debtors’ plan, the motion of Morris Friedell for relief from stay or in the alternative to dismiss the debtors’ Chapter 13 petition, the...
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ORDER This adversary proceeding is now in the post-judgment, post-appellate phase of litigation. The Court issued money judgments in plaintiffs favor on August 8, 1994 against three defendants. The judgment and an interlocutory order entered May 20, 1994 were appealed to the District Court and affirmed. The judgment was issued in plaintiffs favor as a result of the defendants D.A. Cro...
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*573 MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This proceeding comes before the court on Plaintiffs Motion for Summary Judgment. After considering the parties’ pleadings, the record in the file and applicable authorities, I conclude that Plaintiffs motion will be granted in part and denied in part. FACTUAL BACKGROUND On October 2...
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ORDER DETERMINING REASONABLE COMPENSATION FOR THE ATTORNEY FOR THE TRUSTEE THIS CAUSE came before the undersigned Bankruptcy Judge on Wednesday, November 30, 1994, for hearing on the pending application for compensation for the Attorney for the Chapter 7 Trustee, and the objections filed by the United States Trustee and a creditor, Lucia Flowers. The Court having received and reviewed the objec...
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MEMORANDUM This matter is before the Court on the Parties’ respective Motions for Summary Judgment. The Illinois Department of Public Aid (“Plaintiff”) has requested a judgment on its complaint to determine that certain monies it paid to Karol Jeanne Wilder (“Debtor”) created a debt that is nondis-chargeable in this bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(2). The Debtor has argue...
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178 B.R. 598 (1995) In re ALMACS, INC., Debtor. Bankruptcy No. 93-12090. United States Bankruptcy Court, D. Rhode Island. February 17, 1995. *599 *600 *601 *602 Robert Lapowsky, Cohen, Shapiro, Polisher, Sheikman & Cohen, Philadelphia, PA, Edward Bertozzi, Steven Kumins, Edwards & Angell, Providence, RI, for debtor. Joseph DiOrio, Hinckley, Allen & Snyder, Providence, RI, Joel D. Appl...
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MEMORANDUM OF DECISION Fischer Enterprises, Inc. (“Fischer”), an overseeured creditor, seeks an order compelling the trustee to disburse, subject to available funds, fees, costs and default interest associated with its claim. For the reasons set forth below, the motion is granted in part and denied in part. 1 BACKGROUND On May 11,1992, Anna Kalian (“Kalian” or the “...
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MEMORANDUM OPINION AND ORDER The Court has before it the motion of Bombardier Capital, Inc. (“BCI”) for relief from the automatic stay to exercise its rights with respect to certain recreational motor vehicles and trailers in which it claims a security interest. The debtor assented to the motion. A creditor, CFX Bank (“CFX”), objected to the motion with respect to used recreational vehicles only...
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ORDER DENYING DEFENDANT’S EX-PARTE MOTION TO VACATE JUDGMENT THIS MATTER came before the Court on Debtor-Defendant’s Ex-Parte Motion to Vacate Judgment filed with this Court on December 23, 1994. Judgment was entered against Defendant in the above-styled adversary proceeding on July 8, 1991. Defendant satisfied the Judgment on November *102130, 1994 and now asks the Court to vacate the Judgment....
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ORDER This matter is before the Court on an objection to confirmation filed by Merchants Bank (the “Bank”). Oral arguments were presented to the Court on the 11th day of January, 1995. BancBoston holds a first mortgage on the debtor’s residence. No arrearage is owed on this debt, and the debtor proposes to pay this mortgage directly as it becomes due. The claim of the Bank is secured by a sec...
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MEMORANDUM DECISION AND ORDER DENYING PAN AM’S MOTION FOR TRANSFER OF VENUE This matter came before the Court for hearing on December 12, 1994 at 2:30 p.m. on the Motion of Pan Am World Airways, Inc. to transfer this adversary proceeding to the United States Bankruptcy Court for the Southern District of New York. For the reasons set forth below, the Motion is DENIED. This Memorandum Decisio...
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ORDER DENYING FINAL FEE APPLICATION FOR COUNSEL TO EXAMINER; SUSTAINING OBJECTION OF UNITED STATES TRUSTEE TO APPLICATION AND PROPOSED ORDER AUTHORIZING AND DENYING MOTION TO ACCEPT FEE APPLICATION INSTANTER AND DEFERRING RULING ON T.C.F.C.’S MOTION TO DISGORGE ATTORNEYS’ FEES PAID TO HALL & O’BRIEN, P.A. THIS CAUSE having come before the Court on December 15,1994 on the Objection of ...
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DECISION AND ORDER The matter before the Court for decision arises as a result of the objection of the trustee in bankruptcy to the debtor’s claim of exemption in two promissory notes which are payable to the debtor and his wife,- or the survivor. The debtor takes the position that the use of the words “or survivor” after the names of the husband and wife is sufficient to create a tenants by the e...
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DECISION AND ORDER This matter comes before the Court on the Debtor’s objection to the claim of James C. Agnew for post-petition interest and attorneys’ fees. A hearing was held on October 11, 1994, and a briefing schedule was set to allow the parties to further argue their positions to the Court. The matter has been briefed by both parties and is now ripe for decision. ISSUES Two issues ar...
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MEMORANDUM OPINION On March 12, 1992, an involuntary petition under Chapter 7 of the Bankruptcy Code was filed against Debtor. On April 16, 1992, this court entered an Order for Relief. On January 21,1994, Plaintiff filed an adversary complaint alleging that the Plaintiff’s collateral was wrongfully converted by Defendant. A *90 trial on the merits was held on September 1...
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DECISION AND ORDER By decision and order dated November 30, 1994, this Court deferred a ruling on the debtor’s entitlement to claim an exemption under Code of Virginia § 34-4 in the proceeds from the sale of the debtor’s property which is subject to the judgment lien of Rockingham Mutual Insurance Company. Pi’ior to the entry of the November 30, 1994 order, counsel for Rockingham Mutual Insurance ...
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MEMORANDUM OPINION This matter comes to be heard upon the motion of the IRS to dismiss Debtors petition for relief under Chapter 13 because Debtors owe in excess of $250,000.00 in noncontin-gent, liquidated, unsecured debt. This Court having now considered the operative facts and the arguments of counsel finds as follows. Statement of Facts On September 27, 1994, the IRS se...
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OPINION ON MOTIONS OBJECTING TO CLAIMS FILED BY 6,977 LIMITED PARTNERS OF NONDEBTOR PARTNERSHIPS AND OPINION ON MOTION TO SUBORDINATE 6,977 CLAIMS FILED BY LIMITED PARTNERS I. MOTIONS OF CREDITORS’ COMMITTEE OBJECTING TO CLAIMS FILED IN ANGELES CORPORATION BANKRUPTCY CASE BY 7,000 PLUS PERSONS WHO PURCHASED LIMITED PARTNERSHIP INTERESTS IN 16 NONDEBTOR PARTNERSHIPS A. BACKGROUND ...
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DECISION ON DISCHARGEABILITY OF STUDENT HOUSING DEBT This adversary proceeding was instituted by Fred Alibatya (“Plaintiff’ or “Debtor”), a former graduate student of New York University (“NYU” or “Defendant”), to obtain a determination that certain outstanding pre-petition student resident housing charges are dischargeable in bankruptcy. The Debtor filed a Chapter 7 petition on November 6,...
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MEMORANDUM OPINION AND ORDER ON MOTION TO RECONSIDER ORDER ON MOTION TO DISMISS THIS MATTER comes before the Court on the Motion to Reconsider Order on Motion to Dismiss filed by Vicki S. Porter and Vicki S. Porter, P.C. (collectively “Porter”), on January 6, 1995, the Reply thereto filed by the Debtor on January 26, 1995, and the Response filed by Porter on January 30, 1995. The Court, h...
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OPINION Maradam Realty Trust (“Maradam”) moves for an order directing the bankruptcy estate to pay it $4,960.50 in rent accrued before rejection of its lease. Maradam relies on the requirement of section 365(d)(3) of the Code that the estate “timely perform” its lease obligations prior to rejection. I grant the motion. John Brennick and Elaine Brennick (the “Debtors”), who are hu...
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MEMORANDUM OPINION AND ORDER Debtor in possession Roger Clinton Haines filed this adversary action seeking to avoid the pre-bankruptcy termination of a lease as a fraudulent transfer under 11 U.S.C. § 548(a)(2). Debtor and the defendant, the Regina C. Dixon Trust, filed cross-motions for summary judgment. Debtor in possession seeks summary judgment on the issue of whether the terminat...
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Order Regarding Motion of U.S. Trustee for Dismissal Pursuant to 11 U.S.C. § 707(b) This matter is before the Court on the Motion of the United States Trustee (the “Movant”) seeking dismissal of this case pursuant to 11 U.S.C. § 707(b) (the “Motion”). That Motion was the subject of an evidentia-ry hearing before this Court. At the conclusion of that hearing, the Court informed the parties that ...
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ORDER HOLDING CREDITOR IN CONTEMPT AND AWARDING ATTORNEY FEES FOR VIOLATION OF THE AUTOMATIC STAY This matter came on for hearing on February 16, 1995, on debtor’s Motion to Show Cause why creditor, Great Lakes Higher Education Corporation (Great Lakes), should not be held in contempt for violation of the automatic stay imposed pursuant to 11 U.S.C. § 362(a). The motion at issue was filed on Ja...
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OPINION Fleet Credit Corporation (the “Creditor”) moves for approval of its agreement with Cambridge Biotech Corporation (the “Debt- or”) granting it relief from the automatic stay with respect to bank accounts which the Debtor assigned to it as security for its loan obligation. The Official Unsecured Creditor’s Committee (the “Committee”) objects to the motion, asserting the Creditor...
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MEMORANDUM This matter comes before the court on the trustee’s proposed sale of a 1985 Mazda 626 to Tad D. Eickman and his insurer, Union Insurance Company, Lincoln, Nebraska for $2,000.00 cash. (See Fil. # 29). Consummation of the proposed sale would constitute not only a severe breach of ethical rules governing attorney conduct, but would be criminal in nature. The proposed sale is ...
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OPINION A INTRODUCTION The instant Chapter 13 bankruptcy case presents Objections to certain of the Debtor’s exemptions claimed in her original Schedules and to confirmation of her Amended Chapter 13 Plan (“the Plan”). We find that all of the Objections ultimately pressed by the remaining objectors were filed out of time pursuant to the strictly-enforced time deadlines in the...
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MEMORANDUM OF DECISION The matter before the court is a motion filed by the United States, on behalf of its agency, the Internal Revenue Service (IRS), to disburse funds presently held by the Chapter 7 trustee, Michael V. Demczyk (Trustee). After a hearing was conducted, Charles and Barbara Schilling (Debtors) filed a brief urging the allocation of the funds to their nondischargeable tax ...
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OPINION INTRODUCTION On October 21, 1994, the Court confirmed the Chapter 11 plan of Capital West Inves*826tors, a California Limited Partnership, over the objections of Reilly Mortgage Group, Inc., the servicing agent on the first deed of trust, and The Mortgage Bankers Association of America (MBAA), as amicus curiae. Reilly sought reconsideration of the Court’s order confirming the plan and was...
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178 B.R. 328 (1995) In re DAZIC CONTROLS CORPORATION, Debtor. Bankruptcy No. 2-94-01389. United States Bankruptcy Court, D. Connecticut. February 17, 1995. *329 Alan Robert Baker and Dominic Fulco III, Baker & Fulco, Putnam Park, Wethersfield, CT, for Winterburn Mfg. Co. and Robert W. Randall. Joel M. Grafstein, Grafstein & Associates, Farmington, CT, for debtor. Byron Paul Yost, Yost &am...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the MOTION TO STRIKE JURY DEMAND AND TO DENY MOTION FOR WITHDRAWAL OF THE REFERENCE, filed by the Plaintiff on January 4, 1995. This adversary proceeding was filed by the Trustee on December 18, 1992. On April 8, 1993, Robert C. Arnot filed his answer which contained, inter alia, affirmative defenses for recoupment and setoff. H...
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MEMORANDUM OPINION This matter comes before the Court upon cross motions for partial summary judgment filed by Michael Chiasson, Trustee (“trustee”) for Confabco, Inc. (“Confabco”) (Pl. 11) and by Chaparral Steel Company (“Chaparral”) (Pl. 8). The parties are in agreement that there are no genuine issues of material fact and that judgment should be entered as a matter of law. The cour...
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MEMORANDUM DECISION DISMISSING COMPLAINT SEEKING DETERMINATION OF DISCHARGE-ABILITY OF DEBT Fellows, Read & Associates, Inc. (the “Plaintiff’) seeks a determination that three debt obligations of Ralph Rieder (the “Debt- or”), embodied in three guarantees delivered to the Plaintiff in 1989, are not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). On December 15, 1994, the Court conduct...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objection to debtors’ 1 claim of exemption filed by the trustee. The Court held a hearing on November 9, 1994, and upon the facts stipulated by the parties and post hearing briefs, the Court enters these findings of fact and conclusions of law. Findings of Fact The parties are in agreement as to the followi...
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*531 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the amended motions of Jax Distribution Center for administrative expense for rent and removal of hazardous wastes. A hearing was held on January 4, 1995, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: Findings of Fact The parties have agreed to the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon the complaint of plaintiff, Patricia Mendez, which seeks to except a debt from defendants’ discharge pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4) and (a)(6). A trial was held on November 16, 1994, and upon the evidence presented the Court enters these findings of fact and conclusions of law: ...
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ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AND DISMISSING ADVERSARY PROCEEDING This adversary proceeding came before the Court for pre-trial conference on January 18, 1995, upon the complaint for declaratory judgment filed by plaintiff, Larry Wesehe, and a motion for judgment on the pleadings filed by defendant, United States of America Internal Revenue Service. Plaintiff...
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MEMORANDUM DECISION ON BANK’S CROSS-MOTION FOR RELIEF UNDER 11 U.S.C. § S6S Kemer Printing Company, Inc. (“Kemer” or “debtor”) has moved this Court pursuant to § 363 of the Bankruptcy Code (“Code”) for authorization to utilize National Westminster Bank USA’s (“NatWest”) cash collateral. Although debtor does not dispute that Nat-West has perfected security interests in substantially al...
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MEMORANDUM DECISION ON TRUSTEE’S COMPLAINT TO RECOVER PREFERENTIAL TRANSFER CAME ON for consideration the complaint of Andrew B. Krafsur, Trustee (“Trustee”) for El Paso Refinery L.P. (“EPR”), to recover preferential transfers, 11 U.S.C. § 547, from Scurlock Permian Corporation (“SPC”). After hearing thereon, the court took this matter under submission. This decision now resolves this mat...
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ORDER This matter is before the Court on a complaint filed by the plaintiff seeking the Court to determine his interest in one acre of real estate and a mobile home. The defendant, the State of Alabama, filed a motion for relief *222 from the automatic stay to proceed in the Circuit Court of Lawrence County, Alabama with a condemnation and forfeiture proceeding pursuant to Section 20-2-93 Co...
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MEMORANDUM OPINION This matter comes before the Court on cross motions for summary judgment. Jones Truck Lines, Inc. (“Plaintiff’ or “Jones”), seeks to recover purported freight undercharges relating to transportation services provided for Republic Tobacco, Inc., n/k/a DRL Enterprises, Inc., (“Defendant” or “Republic”), between October 1988 and January 1989, under the Interstate Commerce ...
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Memorandum Decision and Order This matter comes before the Court upon a Notice of Motion, dated April 14, 1994, by Joel Schwartz (“Debtor”) to convert his chapter 7 petition (“Petition”) to one under chapter 13, or, in the alternative, to have the chapter 7 bankruptcy withdrawn. The chapter 7 trustee, Allan B. Mendelsohn, Esq. (“Trustee”), filed an Affirmation in Opposition to the mot...
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MEMORANDUM This matter is before the court upon the motion for summary judgment filed by defen *156 dants Resource Bancshares Mortgage Group and Freedom Mortgage Corporation. For the reasons set forth below, the motion will be denied. FACTS On March 8, 1994, the debtors executed a note and deed of trust in favor of defendant Freedom Mortgage Corporation, which w...
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OPINION AND ORDER The consolidated Debtor, Jewelcor, has filed a Motion to Assume an Executory Contract, that is, a certain lease with M & G Equities. M & G has countered with a Motion to Compel Rejection of the Lease and a Motion to Compel Payment of Administrative Rent. Also pending between the parties, but not yet heard by the Court, is a Motion of Jewelcor to Compel Specific Performance of ...
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OPINION AND ORDER The United States Trustee has objected to the fee application of counsel for the Debtor Koresko & Noonan. Testimony on same was taken on June 9th, 1994. At that time, the threshold issue arose as to whether the retainer of Koresko & Noonan (“K & N”) in the amount of Forty Thousand Dollars ($40,-000.00) was paid from property of the estate or whether the source of tha...
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OPINION AND ORDER Before the Court are actions against The Globe Store Acquisition Co., Inc., (hereinafter “Debtor”), by the Pennsylvania Power & Light Company, (hereinafter PP & L), and by the Broadway Theater of Northeastern Pennsylvania, Inc., (hereinafter “Theater”), seeking to impose a trust upon the Debtor so that funds in possession of the Debtor would be considered ...
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MEMORANDUM OPINION On December 22, 1994, the County of Orange (the “County”) adopted a series of cost reduction resolutions (the “Resolutions”) to address a severe shortfall in its general fund. As part of the efforts to bring its expenses in line with expected revenues, the County unilaterally suspended certain provisions of its employee agreements that it had with various County employe...
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DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration are cross motions for summary judgment on the priority claim of the Travelers Insurance Company (“Travelers”). The question faced by the court is whether a claim for unpaid premiums for statutorily mandated workers’ compensation insurance is entitled to fourth priority status under 11 U.S.C. § 507(a)(4) a...
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*722 ORDER ON OBJECTION TO CLAIM OF THE INTERNAL REVENUE SERVICE THIS CAUSE came on for consideration upon Final Evidentiary Hearing on Debtors’ Objection to Claim of the United States of America, more specifically the Internal Revenue Service. The Court has considered the Objection, the evidence, together with the record, and finds as follows: Facts Debtors filed a...
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ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER IS PLAN In a case such as this, filed under Chapter 13 of the Bankruptcy Code, 1 the provisions of § 1325(a) govern whether the court may confirm the debtor’s Chapter 13 plan. Section 1325(a)(5) deals with allowed secured claims provided for in the plan. Its requirements are met if the holder of the claim accepts the plan [§ 132...
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MEMORANDUM OPINION Pending before the Court is an Objection to Confirmation of the debtor’s, Johnie Gail Harlan (Harlan), modified Chapter 13 plan filed by David E. Jeffery (Jeffery) on September 16, 1994. The objection asserts that Harlan’s plan is not proposed in “good faith” as required under 11 U.S.C. § 1325(a)(3) of the Bankruptcy Code. The Court conducted an evidentiary hearing on Dec...
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DECISION AND ORDER DENYING MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Before the Court1 is a motion (“Motion”) by Martin Lemer, the debtor-defendant (“Lemer”) for summary judgment and dismissal of the complaint on the grounds that there are no triable issues of fact to be determined. Plaintiff Midlantic National Bank (“Midlantic”) opposed the Motion by filing a cross-mo...
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ORDER DENYING MOTION TO AMEND PROOF OF CLAIM FILED BY THE WRENN INSURANCE AGENCY, INC. This matter is before the Court on the motion filed by The Wrenn Insurance Agency, Inc., d/b/a The Wrenn Insurance Group (Wrenn Agency) to amend its proof of claim and the objection thereto filed by Polsinelli, White, Vardeman & Shalton, P.C., (Polsinel-li), bankruptcy counsel for the debtor The Wrenn I...
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DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT INTRODUCTION This adversary proceeding was commenced by Harold Young (‘Young” or “Trustee”), Chapter 7 Trustee of Wingspread Corporation (“Wingspread” or the “Debtor”), against Paramount Communications, Inc. (“Paramount”), Norman M. Hinerfeld (“Hinerfeld”), NCNB National Bank (“NCNB”) 1 and Kay-ser-Roth Corporati...
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ORDER Before the court is a joint motion for summary judgment filed by plaintiff, Harry W. Pettigrew, Chapter 7 trustee for Amarlite Architectural Products, Inc., and defendant, Congress Financial Corporation (Southern) (“Congress”). Plaintiff seeks a determination of the validity and priority of liens, claims or interests and that Congress is entitled to all funds presently held by t...
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MEMORANDUM OPINION ON JONES’ MOTION TO ANNUL STAY Confidential Investigative Consultants, Inc. (“CIC” or “Debtor”) filed this bankruptcy case on April 16, 1991, under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. CIC’s Reorganization Plan was confirmed on March 19, 1992, but the Plan has not yet been consummated and a final decree has not been entered. This Cou...
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Trans World Airlines, Inc. (TWA) moved for summary judgment on its objection to two claims, numbers 8124 and 15042, filed by Aprille Schelhammer. Ms. Schelhammer responded to the objection but did not file any response to the motion for summary judgment nor did she appear at the time scheduled for argument. This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) and (B). The basis for claim no. 8124 f...
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MEMORANDUM OPINION Introduction Presently before the Court is the objection of Creditor Sylvester Alen Porter (“Porter”) to the confirmation of the amended Chapter 13 plan (“Amended Plan”) proposed by debtor Bill Norwood a/k/a William *685 Norwood (“Debtor”). 1 A hearing on the objection was held on January 27, 1995, after which the Court took the matter under advisement for dispositi...
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OPINION In stage one of this litigation between the Plaintiff, the Trustee in Bankruptcy (TRUSTEE) for both PEARSON INDUSTRIES, INC. (PEARSON) and INDUSTRIAL AND MUNICIPAL ENGINEERING, INC. (IME), 1 and the Defendant, McCORD AUTO SUPPLY, INC. (McCORD), the parties filed cross motions for summary judgment on the issues of liability, reserving any issues of damages. This Court fo...
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MEMORANDUM DECISION The Court has the above-mentioned matters under advisement. 1 Various hearings *819 have been held, culminating in the Court’s request of the parties to file additional briefs. The issue concerning the Court is whether res judicata principles preclude Mr. Reed’s claims against the Trustee, Maricopa County Flood Control District, and o...
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MEMORANDUM OPINION FACTS On May 15,1991, the plaintiff, an attorney, sued the debtor in the Superior Court of the State of Washington for Whatcom County. The complaint alleged theft, conversion, fraud, and misrepresentation and sought damages in the sum of $30,000. On May 29, 1991, a stipulated judgment was entered. Aside from the caption, which stated in part “STIPULATED JUDGMEN...
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I. INTRODUCTION This matter appears to involve a question not previously addressed in any published cases: Should the Court rule on a non-debtor litigant’s motion to remand this adversary proceeding to state court before that litigant is willing to inform the Court whether or not it will assert any claims against the Chapter 11 Debtor-in-Possession, and thereby submit to adjudication of the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a Motion Pursuant to 11 U.S.C. § 1129(b) — Class 17 (Unsecured) (Doc. No. 106) filed by Debtors and a Confirmation Hearing held February 9, 1995. A hearing was held on the Motion, along with the confirmation hearing, on February 9, 1995. Upon hearing the evidence presented, the Court enters the following Findings of Fa...
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OPINION NOW before the Court is the Complaint to Determine Dischargeability of Debt filed by Bombardier Capital, Inc. (hereinafter referred to as “Plaintiff’ or “Bombardier”) against Gary Black (“Defendant”) 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. ...
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MEMORANDUM OPINION On June 7, 1994, the County of Orange (the “County”) issued bonds aggregating $169,000,000 pursuant to the “temporary borrowing” provisions of California Government Code §§ 53850-53858. Pursuant to § 58856, the County pledged certain future tax and other general revenues to pay the principal and interest on the notes. Alliance Capital Management L.P. and Putnam Inv...
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MEMORANDUM OPINION ON MOTION TO SUBSTITUTE The issue before the Court is whether the trustee may be allowed to substitute as plaintiff in an action under section 727, after the deadline for complaints has passed. After reviewing the cases cited by the parties, the Court concludes that the weight of authority favors the trustee. Resolution of the matter centers on Rule 7041, F.R.Bankr.P., whic...
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DECISION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT This matter is before the court upon the parties’ memoranda of law concerning jurisdiction of the court to entertain plaintiffs complaint and standing of the trustee in bankruptcy to bring this action. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. PROCEDURAL POSTURE ...
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DECISION AND ORDER ALLOWING-CLAIM OF INTERNAL REVENUE SERVICE This matter is before the court upon the Debtor’s objection to a proof of claim filed by the Internal Revenue Service. 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 § 157(b)(2)(B) — allowance or disal-lowance of claims...
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MEMORANDUM DECISION ON MOTION TO PAY CERTAIN REAL ESTATE COMMISSIONS Debtor has brought a motion to authorize payment to certain real estate brokers of commissions for sales of condominium units negotiated pre-petition, but which closed escrow post-petition. The Official Committee of Unsecured Creditors has opposed the motion, arguing that the realtors’ claims are pre-petition general uns...
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MEMORANDUM OPINION FACTS On February 21, 1995, this ease under chapter 11 of the Bankruptcy Code came before this Court for confirmation of the debtor in possession’s (“DIP”) plan of reorganization. Appearing before the Court were Robert Shields, attorney for the DIP, David Evans, attorney for BancBoston, Harvey Wachsman, attorney for the unsecured creditors committee, Olin Brooks for the ban...
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ORDER DENYING OBJECTOR’S MOTION This case came on for hearing on the joint objection of Thomas F. Miller, the trustee, and Steiner and Saffer, a judgment creditor, to the debtor’s claimed exemptions. Thomas G. Wallrich appeared for the debtor. Kon-standinos Nicklow appeared for Steiner and Saffer. The trustee did not appear. This court has jurisdiction over this motion pursuant to 28 U.S.C....
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MEMORANDUM OPINION AND ORDER INTRODUCTION This is a dischargeability proceeding in which the plaintiff seeks to prevent the debt- or from discharging a debt payable to the plaintiff for representing the debtor’s former spouse in a dissolution proceeding. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 13...
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OPINION The appellants filed a proof of claim based on § SGSQ). 1 The reorganized debtor/appel-lee filed an objection to the appellants’ claim alleging, inter alia, that no amount was owed to the appellants. After several hearings, the bankruptcy court disallowed the claim in full. We AFFIRM. I. FACTS On June 6, 1992, the appellants, Burk N. and Theresa T. ...
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OPINION Appellant, a judgment creditor, seeks reversal of the order denying his motion for entry of a default judgment and dismissing his nondischargeability complaint against debtors. As debtor-transferors can have no monetary obligation under the state fraudulent transfer law which could be nondis-ehargeable, we AFFIRM. CONTEXT On 24 July 1990, Plaintiff Phillip Quarré, as...
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MEMORANDUM AND ORDER ON MOTION FOR LEAVE TO AMEND COMPLAINT The plaintiff seeks leave to file an amended complaint to avoid an alleged preferential transfer which was not challenged in the original complaint. Because the proposed amendment challenges a distinct transaction, I conclude that it does not relate back to the filing of the original complaint and is therefore time barred by § 54...
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Amended Memorandum of Decision on Appropriate Interest Rate to an Overse-cured Creditor in a Chapter 12 Family Farmer Case This contested matter is before 1 us on Bank’s objection to the interest rate Chapter *948 12 Debtors propose to pay on Bank’s over-secured claim. We hold that neither of the two rates advanced by the contending parties appropriately compensate...
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OPINION Chapter 7 debtors, Alan P. Johnson and R.N. Johnson (the “Debtors”), filed a motion seeking an order to the effect that certain payments due post-petition under an anti-competition covenant are not property of the bankruptcy estate. The bankruptcy court held the payments were property of the estate. The Debtors appeal. Factual Background Alan P. Johnson (“Johnson”), ...
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BACKGROUND On July 20, 1993, the Debtor, Joseph C. George, (the “Debtor”) filed a petition initiating a Chapter 7 ease. On his schedules, he listed Elmira Savings Bank, FSB (“Elmira Savings”) as an unsecured creditor with a fixed and liquidated claim of $25,000.00. On August 6, 1993, a Notice was prepared and forwarded by the Court to all of the Debtor’s creditors and parties in interest ...
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*41 MEMORANDUM OF DECISION UPHOLDING ARTISAN’S LIEN ACQUIRED POSTPETITION Summer, a postpetition creditor, moved 1 for an order modifying and terminating the automatic stay in order to liquidate certain inventory belonging to Debtors in Summer’s possession. Summer seeks to apply the proceeds from sale of the inventory to satisfy its $180,000 administrative expense clai...
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ORDER ON TRUSTEE’S COMPLAINT SEEKING AVOIDANCE OF PREFERENCES Heard on February 22, 1995, on the Trustee’s Complaint to recover certain payments by the Debtor to Employee Staffing of America (“ESA”), made within the ninety days prior to the date of the petition.1 Pre-petition, Hyperion and ESA had entered into a contract for ESA to provide employees for Hyperion’s operations. ESA employees worki...
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AMENDED ORDER DETERMINING INTERVENOR COUNSEL’S COMPENSATION Heard on January 11, 1995, on the fee application of Adler, Pollock & Sheehan, counsel for the Intervening Plaintiffs, requesting $28,047.50 in fees and reimbursement of $1,426.38 in expenses. Having examined the request according to the standards applicable in this Circuit as described in Furtado v. Bishop, 6...
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MEMORANDUM ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on the 3rd *608 day of November, 1994, on cross motions for summary judgment. Appearances were as follows: Thomas Flynn for the plaintiff, Photo Mechanical Services, Inc. (“Debtor”...
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MEMORANDUM This is an action for the avoidance and recovery of certain alleged fraudulent conveyances from the debtor to the various defendants brought by the Official Committee of Unsecured Creditors of the debtor, Millers Cove Energy Co., Inc. (the “Committee”), pursuant to 11 U.S.C. § 544(b). Presently pending before the court are the following matters: (1) motion to dismiss filed ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This is the next phase of an ongoing controversy between Hillsborough Holdings Corporation/Jim Walter Industries and its 31 wholly owned subsidiaries (Debtors) and the United States of America (Government). The controversy centers around the alleged *731liability of some of the Debtors for various and sundry taxes asserted in these Chapt...
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OPINION AND ORDER DENYING DEBTOR’S MOTION FOR SUMMARY JUDGMENT, GRANTING UNITED STATES’ MOTION FOR SUMMARY JUDGMENT AND EXCEPTING DEBTS FROM DISCHARGE This matter is before the Court upon Mark R. Smith’s (the “Debtor”) motion for summary judgment in his adversary proceeding which seeks to discharge tax debts owed to the United States of America, Internal Revenue Service, (“IRS”) for 1987, 1988,...
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ORDER ON MOTION FOR STAY OF ORDER GRANTING MOTION FOR PAYMENT OF TRUSTEE’S FEES AND COSTS BY PROFESSIONALS FOR THE CHAPTER 11 TRUSTEE THIS IS a dismissed Chapter 11 case and the matter under consideration is a Motion for Stay of Order Granting Motion for Payment of Trustee’s Fees and Costs by Professionals for the Chapter 11 Trustee, filed by Dennis J. LeVine of Cramer, Haber, Me- ...
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ORDER ON EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER THIS IS a Chapter 11 case originally commenced by an Involuntary Petition filed against Regency Realty Associates, a general partnership, on November 17,1994 by Farmer’s Supply, Inc., Coastal Fertilizer & Supply, Inc. and Howard Fertilizer Co., Inc. By consent, this Court entered an Order for Relief on December 19, 1994. On Decembe...
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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 claim set forth by Diane L. Jensen (Trustee) against Diane O’Connor (Ms. O’Connor) in a two-count complaint. In Count I the Trustee seeks to recover $50,000 which according to the Trustee is a voidable preference pursuant to § 547(b) of the Bankruptcy Code. The ...
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MEMORANDUM OF DECISION Before the Court for determination is a “Motion to Compel the Trustee to File an Objection to Claim or Alternatively to Allow a Creditor to Object to the Claim of Another Creditor” (“Motion to Compel”) filed by a creditor, Sidney Simon (“Sidney”). Through his Motion to Compel, Sidney asks the Court to order the Chapter 7 Trastee in Bankruptcy 1 to object to a proof of c...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case and the matter under consideration is a claim set forth by Diane L. Jensen (Trustee) in a two-count Complaint filed against Paul L. Brink and Loraine D. Brink (Debtors). In Count I the Trustee seeks an order directing the Debtors to turn over their Nationwide insur-*727anee annuity in the original amount of $13,-400. In Coun...
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MEMORANDUM OPINION AND ORDER This Memorandum Opinion and Order in the case of Dorothy Jenelle Price (“Debtor”) is issued pursuant to an Order of the United States District Court entered on October 12, 1994. That Order reversed and remanded a decision rendered on November 17, 1993. For reasons amply expressed in the November 17, 1993, Memorandum, this Court declined to award attorney fees to D...
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ORDER ON MOTION FOR SANCTIONS The matter under consideration is a Motion to Impose Sanctions, filed by Erwin Gremli, II (Gremli) in the above-captioned adversary proceeding. The adversary proceeding was dismissed by this Court on December 20, 1994. The Order expressly provided for retention of jurisdiction to consider any Motion, if one is filed, to impose sanctions. The Motion filed by Gremli ...
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MEMORANDUM OF DECISION This matter came before the court on three adversary proceedings filed by the debtor-in-possession, W.T. Vick Lumber Company, Inc., seeking to avoid transfer of security interests to officers/shareholders as preferential transfers under 11 U.S.C. § 547(b). The parties stipulated to the material facts of the case. The court has considered the- facts stipulated, t...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration is an Amended Complaint Objecting to Discharge and to Determine Dischargeability of Debt. The Complaint was filed by George Richard and Mary Ann Richard (Richards). The Amended Complaint initially contained eight counts. At the outset of the final evidentiary, the Court was advi...
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MEMORANDUM Trial was held on October 13, 1994. Post-trial briefs and argument have been submitted. This memorandum contains findings of fact and conclusions of law required by Fed. Bankr.R. 7052 and Fed.R.Civ.P. 52. This is a core proceeding as defined by 28 U.S.C. § 157(b)(2)(I). Question Presented Are the 1981 and 1982 federal income taxes, and statutory interest there...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the United States’ Motion for Summary Judgment. No response was filed by defendant, Douglas Raymond Turner. The United States is seeking a determination that the debt owed by Turner to the United States is not dischargeable pursuant to: (1) 11 U.S.C. § 523(a)(2)(A), because it is a debt arising from ...
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OPINION AND ORDER ON MOTION FOR CLASS CERTIFICATION The matter before the Court is the motion for class certification filed by Jeffrey A. Weinman, as Trustee for the Integra Unsecured Creditors’ Trust (Trustee), and the objections thereto by various defendants. The claims in this action were transferred to the Unsecured Creditors’ Trust (Trust) pursuant to the First Amended Chapter 11 Pla...
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ORDER DENYING APPLICATION OF LABOR FORCE, INC. FOR PAYMENT OF ADMINISTRATIVE EXPENSE This matter came before the Court November 22, 1994, on the application of Labor Force, Inc. (“Labor Force”), Ackerman, Bakst & Cloyd, P.A. (“Ackerman”) and Bracewell & Patterson, L.L.P. (“Bracewell”) (collectively the “Applicants”) for payment of administrative expenses pursuant to 11 U.S.C. § 503(b)(3)(D) and...
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OPINION AND ORDER This matter is before the Court on the objection of Four Seasons Solar Products Corp. (“Four Seasons”) to the debtor’s claim of exemption. The two issues before the Court are whether the creditor’s objection was timely filed under Rule 4003(b) and whether the debtor’s property held as tenants by the entirety loses its exempt status because the debtor’s spouse died af...
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DECISION Transamerica Premier Insurance Company (“Transamerica”) has filed a motion for summary judgment denying the discharge of James Chaplin (“Chaplin”) under 11 U.S.C. § 727(a)(2)(B) and § 727(a)(4)(A). 1 This adversary is a core proceeding under 28 U.S.C. §§ 157(b)(2)(I) and (J). In June 1989, Chaplin contracted with the State of Wisconsin (“State”) to build pit toile...
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DECISION Neil R. McKloskey, chapter 7 trustee (“trustee”), has timely objected to the exemptions claimed by the debtor, Michael J. Bell, in his “Schedule C — Property Claimed As Exempt” (“Schedule C”). A copy of the debtor’s Schedule C is attached to this decision. The question raised by the trustee’s objection is whether the debtor has properly *130 claimed his exemptio...
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MEMORANDUM OF DECISION I. INTRODUCTION On January 4, 1995, there came on for hearing before this Court two competing motions filed by the parties, each of which raises the implications of certain inadequacies in the Plaintiffs service of process upon the Defendants. The Defendants contest the Plaintiffs “Motion to Enter Judgment by Default as to Defendants ...” (Doc. I.D. No. 8) (her...
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MEMORANDUM OPINION AND ORDER GRANTING DEBTOR’S APPLICATION FOR WAIVER OF THE CHAPTER 7 FILING FEE On September 1, 1994, the debtor, Delois Dotson, filed a Voluntary Chapter 13 petition, together with completed Schedules and Statements. On December 16, 1994, the debtor converted her ease to a case under Chapter 7 of the Bankruptcy Code and filed an application for waiver of the Chapter 7 filing ...
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MEMORANDUM OPINION The Debtor, Frederick Savage, Inc. (“Debtor”) objects to a portion of the Internal Revenue Service’s (“IRS”) amended proof of claim in this Chapter 11 case, specifically the penalties and interest asserted for Debtor’s failure to timely file tax returns, failure to timely pay taxes and failure to deposit taxes. The Debtor argues that its *344 failure to...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Gold Standard Baking, Inc. (the “Debtor”) for an order authorizing issuance of the Debtor’s checks without a “Debtor in Possession” designation, and the response in opposition by M. Scott Michel, as United States Trustee for the Northern District of Illinois (the “UST”). The dispute focuses on the second requiremen...
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MEMORANDUM OF DECISION Presently before the Court is defendant Filler King Company’s motion to dismiss and defendant’s motion for sanctions, costs and an award of attorney’s fees under Federal Rule of Bankruptcy Procedure 9011 and 28 U.S.C. § 1927. BACKGROUND KMC Transport, Inc. (the “Debtor”) filed its petition for relief under chapter 7 of Title 11 of the United States Code on May 7,1992. The...
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MEMORANDUM OF DECISION ON DISALLOWANCE OF LATE FILED CLAIM This matter is before us 1 on Debtor’s objection to the late-filed claim of Petroleum. We disallowed the claim in a bench ruling at the conclusion of the February 1, 1995 hearing on the matter. This Memorandum of *53 Decision amplifies and supplements the grounds stated in our verbal order. FACTS Debtor, a business trust, filed ...
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ORDER ON MOTION FOR SANCTIONS THIS IS a dismissed adversary proceeding initially instituted by Janet Phillips and numerous other parties (Plaintiffs), all former patients of Dr. James Caird Burt (Debtor). The claims asserted by the Plaintiffs in their adversary proceeding involved their attempt to obtain a determination from this Court that the liability of the Debtor, represented by a Fi...
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ORDER ON MOTION TO LIFT AUTOMATIC STAY AND MOTION TO ASSUME EXECUTORY CONTRACTS IN THIS Chapter 11 case the matters under consideration are a Motion to obtain relief from the automatic stay filed by FMS Management Systems, Inc. (FMS) and a Motion To Assume An Unexpired Executory Contract, filed by JLS Shamus, Inc. (Debt- or). The issues involved in both matters are interconnected in light...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This is a Chapter 7 liquidation case filed by Jerry Katzman (Debtor) and Helain Katz-man, his wife, originally under Chapter 13 of the Bankruptcy Code on February 12, 1993. The case was voluntarily converted on March 23, 1993 to a Chapter 7 case. The matter presently before the Court is a two-count complaint filed by Southern Commerce Ba...
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FINDINGS OF FACT UPON REMAND THIS WAS the third Chapter 11 case filed by Mandalay Shores Cooperative Housing. Although the case has been dismissed, this Court retained jurisdiction for the limited purpose of determining the administrative expense claims that have been asserted pursuant to § 503 of the Bankruptcy Code. The matters under consideration are an Application for Payment of Compensation ...
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ORDER ON OBJECTION TO CLAIM OF YORK INTERNATIONAL CORPORATION THIS IS a confirmed Chapter 11 ease and the matter under consideration is the reorganized Debtor’s Objection to Claim Number 3278 filed by York International Corporation (York). The claim was filed in the amount of $619,564.57 and states that it is based upon “Indemnity for York’s liability to Limbach Company arising from sale by York 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 four claims asserted by Gordon L. Kiester (Trustee) against Ralph Mizrahi (Debtor); Ruth Ann Mizrahi, his wife, a non-debtor, sued as co-trustee; the Mizrahi Family Trust; and Sheryl Beth Mizrahi and Rochelle S. Mizrahi Winograd, the daughters of the Debtor and ...
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ORDER ON DEBTOR’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS III AND IV IN THIS Chapter 7 liquidation case Chrysler First Commercial Corporation (Chrysler) filed a four Count Complaint in which Chrysler seeks a determination that the debt owed by Douglas E. Nobel (Debtor) should be declared to be not within the exception to the overall protection of the general discharge granted to indivi...
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ORDER On November 7, 1994, the above-captioned matter came on for trial pursuant to assignment. Attorney Joe Peiffer represented Debtor Warren Caslavka. Attorney Morris Eckhart represented Creditor Terra International, Inc. Harry Terpstra appeared as Trustee. The matters before the Court are: (1) Terra International’s Objections to Statement of Intention, Statement of Affairs, Summary...
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ORDER ON MOTION TO ASSUME COMMERCIAL BUSINESS LEASE THIS IS a Chapter 11 case and the matter under consideration is a Motion To Assume Commercial Business Lease filed by the Debtor on November 23, 1994. On December 14, 1994, Sam Verkauf and M. Verkauf Sons Properties, as Landlord, filed a Response to the Motion to Assume and Objection to the Assumption of the Commercial Business Lease. ...
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ORDER On December 12, 1994, the above-captioned matter came on for hearing pursuant to assignment. Attorney John Titler represented Debtor National Cattle Congress, Inc. Assistant Attorney General Jeffrey Farrell represented Defendant Iowa Racing and Gaming Commission (the “Commission”). Attorney Tom Fiegen represented the Unsecured Creditors Committee. The matter before the Court is ...
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MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT The matter before us 1 concerns the application of the statutory trust provisions of Article 3A of the New York Lien Law to the relationship between a contractor and subcontractor involved in a contract for public improvement. The first issue is whether the subcontractor, HEC, has asserted its trust claim under New York Lien...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This matter is before the court on a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4). By virtue of 28 U.S.C. § 157(b)(2)(I), this matter is a core proceeding. Pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure, the following are the court’s findings of fa...
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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 admittedly due and owing by Gregory E. Berhow and his wife, Mary Ann Berhow (Debtors) in the amount of $5,767.82. The claim of nondis-ehargeability is asserted by First Deposit National Bank (Bank) who contends that the ob...
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MEMORANDUM OF DECISION Presently before the Court is Mary Hain-line’s complaint to determine non-discharge-ability of debt. Trial in this matter was held on January 26, 1995. The plaintiffs case in chief consists of thirty-five documents from her state court battery action and her divorce action. Defendant-debtor, Thomas Neal presented his own testimony and that of Dr. William Harlow Mill...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO AVOID FRAUDULENT CONVEYANCE AND FOR EQUITABLE RELIEF This matter is before the Court on a complaint filed by the Chapter 7 case Trustee, *468 George Stevenson, to avoid a fraudulent conveyance pursuant to 11 U.S.C. § 544(b), to recover, for the benefit of the estate, the value of property that was allegedly transferred to the defen...
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MEMORANDUM Before the court is an Application for Dismissal by the Debtor (Fil. # 16), the Trustee’s Objection to Application for Dismissal (Fil. # 18), the Resistance to Trustee’s Objection to Application for Dismissal (Fil. # 19), and the Objection by Howard H. Gat-lin and Keith J. Pennell, Creditors, to the Debtor’s Application for Dismissal (Fil. #20). I conclude that the Application for ...
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OPINION A INTRODUCTION The instant adversary proceeding presents the issue of whether a mortgage company may be held liable for damages when it refused to promptly turn over, to the Chapter 13 Debtor or the Standing Chapter 13 Trustee (“the Trustee”), insurance proceeds resulting from postpetition property damage to the Debtor’s property. While we agree with the Debtor th...
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MEMORANDUM 1 Before the court is the Motion for Relief From the Automatic Stay by the United States, by and through the Internal Revenue Service (“IRS”), (Fil. #9), and the Resistance and Amended Resistance by the debtor (Fils. # 11 and # 12). The Motion for Relief From the Automatic Stay (Fil. # 9) is sustained. FINDINGS OF FACT The debtor, Kim Firestone, filed Chapter 7 bankruptcy on Ap...
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OPINION John Riddle (Riddle) and his workers’ compensation attorney, Thomas C. Rich (Rich), have filed a two-count amended complaint against debtor, James Louis Knapp (Knapp or defendant), seeking a determination that Knapp’s obligation to pay Riddle’s workers’ compensation award, and certain attorney fees related to that award, is non-dischargeable in Knapp’s chapter 7 bankruptcy eas...
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MEMORANDUM DECISION VACATING PRIOR DECISION REJECTING DEBTOR’S RENT-STABILIZED LEASE AND VACATING JANUARY 20, 1995 ORDER Ali Yasin, a chapter 13 debtor (the “Debt- or”), moves for reconsideration of this Court’s January 31, 1995 oral decision which determined that the Debtor’s residential lease (the “Lease”) at 752 West End Avenue, New York, New York had been rejected as a result of the D...
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TABLE OF CONTENTS [[Image here]] MEMORANDUM OPINION This matter comes before the Court on the amended complaint filed by Sheldon L. So-low, trustee (the “Trustee”) of the estates of the debtors, Midway Airlines, Inc., Midway Aircraft Engineering, Inc., and Midway Airlines (1987), Inc. (collectively referred to as “Midway”) against Northwest Airlines, Inc. (“Northwest”), and ...
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OPINION The debtor appeals an order finding a tax debt to be nondischargeable pursuant to § 11 U.S.C. 523(a)(1)(A). I. FACTS In December, 1989, the Internal Revenue Service (IRS) audited Appellant Anthony Vi-taliano’s tax returns for the years 1983 through 1987, assessing a deficiency for each year. Rather than suffer the expense of fighting the IRS, Vitaliano agreed to sign...
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OPINION Lawrence Diamant (“trustee”) is the Chapter 7 trustee for the debtor, Advent Management Corporation (“Advent”). The trustee commenced an action against Taylor Associates (“Taylor”) to recover sums alleged to be either avoidable preferences under section 547, 1 or fraudulent transfers under section 548. The bankruptcy court granted partial summary judgment to the tru...
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MEMORANDUM The Court is faced today with a most disturbing issue — whether to enjoin R.L. McCubbins (hereinafter referred to as “McCubbins”), a bankruptcy petition preparer, from filing papers in this Court. McCub-bins has prepared bankruptcy petitions for debtors in various cases in this District. However, the Court elects to focus on four pending eases: Hastings (case no....
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OPINION OVERVIEW The bankruptcy court authorized a sale of the debtor’s property free and clear of liens. The resulting proceeds were significantly less than the amount secured by the senior lien. The senior lienor had not received notice of the sale and consequently did not appear. The court determined that the trustee’s attempted notice to the senior lien- or satisfied due proc...
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MEMORANDUM Before me is the Complaint of Dutch Masters Meats, Inc. (“Dutch Masters” or the “Debtor”), requesting injunctive relief against the Internal Revenue Service (the “IRS” or the “Service”) and Meridian Bank (“Meridian”). The Complaint seeks primarily to enjoin the IRS from taking action to collect post-confirmation employment tax deficiencies from the reorganized Debtor. For the reasons...
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*707 ORDER AND NOW, this 16th day of February, 1995, upon a trial of this matter on January 30, 1995, I hereby file this Order, including Findings of Fact and Conclusions of Law, in compliance with Bankruptcy Rule 7052: Findings of Fact 1. On September 24,1990, debtor/plaintiff Goodwin Seulky (“plaintiff’) filed a bankruptcy petition in this Court under Chapter 13 of the United States...
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ORDER ON MOTION FOR ABSTENTION AND MOTION FOR SUMMARY JUDGMENT1 This adversary proceeding was commenced on July 22, 1993, by Johnny Leroy Wheeler (“Wheeler”), plaintiff herein and debtor in the underlying bankruptcy ease, requesting a determination of the dischargeability of a tax assessment imposed by the Internal Revenue Service (“IRS”), the defendant herein, against Wheeler for his alleged fail...
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MEMORANDUM OPINION Came on for consideration on January 10, 1995, the Motion of General Motors Acceptance Corporation to Compel Assumption or Rejection of Executory Contract or, Alternatively, to Lift Automatic Stay (“Motion”). Counsel for General Motors Acceptance Corporation (“GMAC” or “Movant” or “Creditor”) and for Margaret Cox (“Debtor”) appeared and presented briefs and argument...
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MEMORANDUM OPINION This adversary proceeding to determine the validity of a lien requires the Court to determine whether a notice of Federal tax lien recorded in the name of Gary A. Reid, Jr. is sufficient to create a lien against the property of Gary A. Reid, Jr., the debtor in this case. A trial of the issues raised by the complaint was held on February 28, 1995, at the conclusion of wh...
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MEMORANDUM OPINION On February 8, 1995, the County of Orange (the “County”) filed a “Motion for Order Approving Comprehensive Fiscal Year 1994-95 Compensation Package for Professionals Retained By Official Committee of Creditors of The County of Orange” (the “Motion”). The Motion provides that professionals employed by individual members of the creditors committee may only receive compens...
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MEMORANDUM OF DECISION The Chapter 7 Trustee (“Trustee”) seeks an order authorizing the assumption and assignment of certain franchise agreements between the Debtor, Lee West Enterprises, Inc. (“Debtor”) and Jaguar Cars (“Jaguar”), Ferrari North America, Inc. (“Ferrari”), Aston Martin Lagonda of North America, Inc., (“Aston Martin”), Land Rover of North America, Inc., (“Land Rover”), and ...
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OPINION AND DECISION ON MOTIONS FOB SUMMARY JUDGMENT This matter is before the Court on the Motions for Summary Judgment filed by *978 Unisys Corporation, fka Sperry Univac Division of Sperry Corp. (“Unisys”) and Frederick M. Luper, Chapter 11 Trustee of the Lee Way Holding Company bankruptcy estate (“Trustee”), concerning the Trustee’s objection to claim number 5951 filed by Unisys. This...
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MEMORANDUM OF DECISION The Chapter 13 Debtors, Jerry Lee Price and Deborah Janice Price, filed a Motion for an Order Establishing Violation of the Automatic Stay and Return of Funds pursuant to 11 U.S.C. § 362(h) 1 as to the District Attorney’s Office of Sacramento County. Debtors contend that the District Attorney’s refusal to terminate a wage and earnings assignment order for child support ...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the Notice of Intention to Sell Personal Property filed by the Trustee, Jack D. Maness, on December 22, 1994, and on the objections thereto filed by RAMBAM 1, Inc., the debtors, and by Jeffrey W. Ainslie and John W. Ainslie, Sr., as general partners of the partnerships identified below. For the reasons set forth herein, all of th...
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AMENDED OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT This matter is before the Court upon the motion for summary judgment filed by H. Christopher Clark, Trustee (Trustee), the response thereto filed by Frank B. Hall & Company (Hall) and the Trustee’s reply to the response. 1 The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 157 and 1384. This is a core ...
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MEMORANDUM OPINION This matter came before the Court upon the Court’s simultaneous receipt of a Motion to Dismiss pursuant to § 1307(b) filed by the debtor and a Motion to Convert pursuant to § 1307(e) filed by the Chapter 13 trustee 1 . The facts leading to this event follow. Walter Howard filed for Chapter 13 protection on March 17,1992. On May 14,1993, the Court confirmed the debtors A...
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MEMORANDUM This case is before the court on the trustee’s objections to the exemptions claimed by the debtor and on the debtor’s motion to strike the trustee’s objections for untimeliness. After considering the briefs of the parties, the evidence presented at a hearing, and the argument of counsel, the court is of the opinion that the debtor’s motion to strike objections should be gra...
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MEMORANDUM OPINION This matter is' before the Court on the defendants’ motion for reconsideration of the Court’s order granting summary judgment of nondischargeability in favor of the plaintiff. I. Facts In September, 1991, the debtors entered into a purchase and sale agreement for the sale of them Tacoma home to Charlaine and Richard Boyce. The agreement required the debtors to convey cl...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding for determination of dischargeability of debt came on before the Court on December 6, 1994, for hearing on the Plaintiff’s motion for summary judgment. The Plaintiff appeared by its attorney, Richard H. Bend. The Defendant appeared by his attorney, Jerome M. Rudawski. Upon the moving and responsive documents and th...
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MEMORANDUM ON DEFENDANT CITY OF KNOXVILLE’S MOTION TO DISMISS AND ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT John F. Weaver, the Chapter 7 Trustee, commenced this adversary proceeding on November 17,1994, asserting that the Defendants violated the automatic stay provisions of 11 U.S.C.A. § 362(a)(3) (West 1993 & Supp.1995). The alleged violations occurred when the Defendants seized a 1981 Mack ...
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MEMORANDUM OPINION This matter comes before the Court on the petition for fees, costs, and punitive damages pursuant to 11 U.S.C. § 303(i) filed by the alleged debtor, Mundo Custom Homes, Inc. (the alleged “Debtor”) against James and Christiane Lawson, Jeanette Heuman, and Harold and Joan Fulsang, as the petitioning creditors (collectively “the Creditors”). The petition seeks to recov...
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ORDER SUSTAINING OBJECTIONS TO DEBTOR’S CLAIM OF EXEMPTION IN CERTAIN FLORIDA REAL ESTATE This Chapter 7 (converted from Chapter 11) case came on before the Court on April 18, 1994, for a hearing on the objections of the Trustee and two other creditors to the Debtor’s amended claims of exemption. Trustee Brian F. Leonard appeared on behalf of the bankruptcy estate. The Debtor appeared by ...
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DECISION ON MOTION BY GERALD HOFFER TO VACATE STAY This matter is before the Court pursuant to a motion made by Gerald Hoffer (“Hof-fer”) to vacate the automatic stay in the case of Burton Flax (the “Debtor”) to allow him to continue with his action to recover a judgment entered in the Supreme Court of the State of New York, Suffolk County on July 12, 1984 and to enforce his rights under ...
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Jackson National Life Insurance Company (“Jackson National”), on behalf of Carolina Steel Corporation (“Carolina”), a reorganized debtor, objects to the $6 million general unsecured claim (the “Claim”) timely filed on behalf of Reclamation Services, Inc. (“Reclamation Services”) and its President, David Comer (collectively “the Claimants”), and seeks entry of an order pursuant to 11 U.S.C. § 50...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on February 22,1995, on the City and County of Denver’s (“City”) Motion for Payment of Chapter 11 Administrative Expenses and the Trustee’s Objection thereto. At the conclusion of the hearing, the Court directed that, because it had not received sufficient notice of the hearing, Rubner & Kutner, P.C. (“RK”), an administrative pr...
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*546MEMORANDUM OPINION This matter comes on to be heard upon the amended complaint filed herein by Tulsa Energy, Inc. (“Tulsa Energy”) against KPL Production Company (“KPL”), Dalco Petroleum (“Dalco”), and Dynex Energy, Inc. (“Dynex Energy”), among others. The parties have filed stipulated facts and briefs on the issues. Upon review of the evidence and the applicable law, the Court finds as follow...
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MEMORANDUM OF DECISION AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT I. Before the court in this action to recover an alleged preferential transfer are cross-motions for summary judgment in which, as stated by the defendant, “[b]oth parties agree that ... the narrow issue [is] ... whether the Debtor had an interest in certain funds transferred to [the defendant].” Defendant’s Reply Memorandu...
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MEMORANDUM OF DECISION Before the Court for determination is the “Trustee’s Objection to the Debtors’ Self-Employment Pension Plan Exemption” (the “Objection”) in which the Chapter 7 Trustee in Bankruptcy (the “Trustee”) seeks a determination that the simplified employee pension plan owned by the debtor, Gerald G. Kellogg (“Gerald”) is (1) not excludable from property of the estate pursua...
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MEMORANDUM Before the Court for determination is an “Objection by Trustee to Debtor’s Claims of Exemptions” (the “Trustee’s Objection”) filed by the Trustee in Bankruptcy, Harold B. Murphy, and the “Debtor’s Response to Trustee’s Objection to Debtor’s Claim of Exemptions” (the “Debtor’s Response”) filed by the debtor, John Van Rye (the “Debtor”). The issue before the Court is whether a Trustee ...
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*591 MEMORANDUM OF DECISION Before the Court for determination are motions filed by James M. Lynch, United States trustee for Region I (the “UST”), pursuant to 11 U.S.C. § 324 and Bankruptcy Rules 9013 and 9014, for the removal of Cecilia Calabrese (“Calabrese”) from the above-captioned cases and from all other cases in which she is the Chapter 13 Trustee in the Western Divis...
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OPINION I The issue here is whether, in calculating the percentage rent it must pay under a lease agreement, The Circle K Corporation (“Circle K”) should include two percent of the commissions received from the sale of lottery tickets or two percent of the gross receipts from the lottery tickets. We hold that the lease agreement provides for the latter calculation. Therefore, we REVERSE. II FACTS ...
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(AMENDED) 3 OPINION This is a case of first impression where a secured creditor has objected to court-ordered adequate protection payments for fear that acceptance of the payments might violate California’s “one action” rule, California Civil Procedure Code § 726, and the related antideficiency statutes §§ 580a, 580b and 580d, and bar foreclosure of its real property col...
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The orders on appeal in these cases arose after the Office of the United States Trustee objected to fees paid and agreed to be paid to the law firm of Hessinger & Associates (“Hessinger”) by Chapter 7 debtors Deborah Sogge and Mark Elección. The bankruptcy court entered an order and memorandum decision which were given a miscellaneous case number, 94 — 102, and captioned “In re Hessinger & Asso...
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OPINION Before the Court is the Motion for Summary Judgment (the “Motion”) filed by Defendants Herman Neumann and Arthur Lerner (“Movants”) in response to the Complaint filed by the Debtor seeking to avoid a tax sale of her property to the Movants under 11 U.S.C. § 548(a)(2) 1 and 522(h) (the “Complaint”) 2. 2 In the Complaint, the Debtor avers that the consideration paid by the Movants...
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ORDER Pursuant to notice, hearing was held on the motion of the United States of America (“USA”) by and through its agency the Farmers Home Administration (“FmHA”) seeking relief from the stay of 11 U.S.C. § 362(a) to accomplish a setoff of amounts owing to the debtor from the USA through the Commodity Credit Corporation (“CCC”) under disaster relief and dairy refund payment programs, against...
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MEMORANDUM OPINION The trustee objects to the debtor’s claim of exemption in a 1990 Lexus automobile under ORS 23.160(l)(h). The objection to the exemption will be sustained for the reasons that follow. BACKGROUND FACTS Prior to August of 1990, the debtors owned a 1990 Lexus LS 400 automobile. In August of 1990, the debtor Robert Driscoll (“debtor”) lost his right foot. Between August and O...
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MEMORANDUM OPINION This is a proceeding to determine the dis-chargeability under 11 U.S.C. § 523(a)(8) of the debtor’s obligation to repay plaintiff Plumbers Joint Apprenticeship and Journeyman Training Committee (“Training Committee”) the costs of the debtor’s participation in an apprenticeship program. BACKGROUND FACTS United Association Local 290 (“Local 290”) is a local labor union for ...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding came on before the Court on December 13, 1994, for hearing *630 on the Plaintiffs motion for summary judgment. The Plaintiff appeared by its attorney, William J. Fisher. The Defendant appeared by his attorney, Michael J. Ianna-eone. Upon the moving and responsive documents and the arguments and l...
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■ MEMORANDUM OPINION This matter comes before the Court on Motion for Relief From Stay filed by Gold Key Lease, Inc., (“Gold Key”) a creditor in this Chapter 13 ease. At issue is the characterization of an agreement as either a lease which must be assumed or rejected, or a security instrument capable of bifurcation into secured and unsecured component claims. This is a core matter...
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MEMORANDUM I. INTRODUCTION The matters before the Court for determination are: 1) the Motion of the Defendants, Peter Zimmerman (“Zimmerman”) and Sil-verman & Kudisch, P.C. (“S & K”) (collectively the “defendants”), to Dismiss Complaint to Avoid and Recover Transfers (the “Motion to Dismiss”); and 2) the Motion of Paul Grella, the Chapter 7 Trustee of the above-referenced debtor (the...
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ORDER THIS CAUSE is before the Court upon the Objection to Confirmation of the Plan, filed on January 31, 1995, and the Motion to Prohibit Use of Collateral, filed on February 23, 1995. Both contested matters were filed by the Natural State Federal Credit Union (“the credit union”). This bankruptcy case was filed on December 22, 1994. The debtor was incarcerated on February 7, 1995, 1 and...
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ORDER THIS CAUSE is before the Court upon the Motion to Lift Automatic Stay, filed on September 19, 1994, by the United States of America, and the debtors’ Objection to Secured Claim of Internal Revenue Service, filed on January 17,1995. The United States moved for relief from stay in order to exercise its setoff rights under section 362 of the Bankruptcy Code. The debtors resist the ...
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ORDER This adversary proceeding was filed July 12, 1994 by George Y. Hsu as a complaint objecting to the dischargeability of a particular debt pursuant to 11 U.S.C. § 523(a)(2)(A). The deadline for filing a complaint objecting to the dischargeability of a particular debt having expired January 7, 1994, I issued an order September 14, 1994 requiring the plaintiff to show cause why the ...
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OPINION Presently before the Court are two Motions to Dismiss the Second Amended Complaint in the above captioned adversary proceeding. The first Motion to Dismiss (“Motion I”) was filed by Defendants Load Rite Trailers, Inc. (“PA Load Rite”), Donald A. Paul (“Paul”), and J. Bruce Chambers (“Chambers”) (collectively the “Load Rite Defendants”). The second Motion to Dismiss (“Motion II...
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MEMORANDUM OPINION3 The question before the Court is whether the purchaser of a landowner’s oil and gas royalty at a trustee’s sale has the right to rescind the sale and recoup her purchase price, adjusted for royalties she received after the purchase.4 The parties have filed briefs with agreed facts. Principles from the netherworld of Kansas oil and gas law will clarify the nature of a Kansas la...
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ORDER THIS CAUSE is before the Court upon the Motion to Lift Automatic Stay, filed on October 14, 1994, by the United States of America. The United States seeks relief from stay in order to exercise its setoff rights under section 362 of the Bankruptcy Code. The debtors resist the motion and allege that by retaining their federal income tax refund, the government has violated the auto...
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MEMORANDUM OPINION1 Debtor Priscilla Jane McPheeters claims an exemption under K.S.A. § 60-2304(e) for the Mary Kay cosmetics inventory that she sells in the course of her occupation.2 The trustee contests the exemption claim. For the reasons stated, the Court rules that the inventory is not exempt.3 *681The exact language of K.S.A. § 60-2304(e) applicable here comes from the 1988 amendments to t...
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MEMORANDUM AND ORDER ON OBJECTION TO CONFIRMATION This matter comes before the Court on American General Finance, Inc.’s (“American General”) objection to confirmation of Debtors’ Chapter 13 Plan. Based upon the arguments of counsel, the record in the file, and applicable authorities, I make the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Debtors filed a voluntar...
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DECISION ON TESTIMONY OF ROBERT WEINGARTEN ON FRAUDULENT TRANSFER CLAIM I. INTRODUCTION Defendants Shearson Lehman Brothers Holdings, Inc. and Shearson Lehman Brothers, Inc. (collectively referred to as “Shear-son” for the purposes of this opinion) have proffered percipient testimony by defendant Robert Weingarten at the trial on the fraudulent transfer cause of action in this litiga...
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MEMORANDUM Rhoden Nissan/Auto Finance Center (“Rhoden Nissan”), asserts that it holds a perfected security interest in the vehicle of debtor, Dawn Went by virtue of Rhoden Nissan’s assignee noting its lien on the vehicle’s certificate of title. Debtor commenced this adversary proceeding to avoid the interest of Rhoden Nissan in the vehicle. I conclude that the security interest of Rhoden Nissan ...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FLEMING COMPANIES, INC. 1 If a trustee2 rejects an unexpired lease, the lessee “may remain in possession of the leasehold” for the balance of the lease term, or longer depending on nonbankruptcy law, according to § 365(h)(1) of the Bankruptcy Code.3 The question here is whether a lessee that subleased the property before the *683debtor-l...
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MEMORANDUM OPINION A motion was filed by Georgia Higher Education Assistance (“Movant”) to allow late filing of a proof of claim in the amount of Five Thousand Four Hundred Twenty-one Dollars and Ninety-four Cents ($5,421.94). Jeraldine C. Hamilton (“Debtor”) opposed the motion. The motion will be denied. These findings of fact and conclusions of law are published pursuant to Fed.R.Ba...
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MEMORANDUM This is a complaint to determine discharge-ability of debt pursuant to 11 U.S.C. § 523(a)(2)(A) (Count I), § 523(a)(4) (Count II) and § 523(a)(6) (Count III). After reviewing the pleadings and briefs and hearing the evidence, the Court finds that plaintiff has failed to meet her burden of proof and that the complaint should be dismissed. FACTS This case arises out of ...
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ORDER On this 27th day of March, 1995, the Motions for Summary Judgment of the Plaintiffs and Defendant came before this Court for consideration. After a review of the above-referenced pleadings, this Court does hereby enter the following findings and conclusions in conformity with Rule 7052, Fed.R.Bankr.P., in this core proceeding: FINDINGS OF FACT 1. On or about D...
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ORDER This matter concerns the motion of Mican Homes, Inc. (“Debtor”) to reconsider and vacate a Bankruptcy Court Order dated March 6, 1995, that denied a request to employ Special Counsel, and to grant the Debt- or’s request to employ Special Counsel. A hearing on the matter was conducted on March 16, 1995, at the conclusion of which the Court announced its determinations and ruling ...
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ORDER This Order addresses the Plaintiff’s motion to reconsider the Court’s Orders entered on February 17, 1995 and February 23, 1995, and the Defendant’s responsive motion to dismiss the Plaintiff’s motion to reconsider, and a request for costs and attorney fees. Neither motion included a memorandum of law. The Plaintiff’s motion to reconsider does not refer to a statute or rule as a basis for ...
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MEMORANDUM Before the court is the Application for Allowance of Administrative Expense by William and Janette Stock (Fil. # 445), the Objection to Application for Allowance of Administrative Expense by JAS Enterprises, Inc. (“JAS”) (Fil. # 458), and the Objection on Behalf of the Official Unsecured Creditors Committee of Application for Allowance of Administrative Expense (Fil. #467)....
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MEMORANDUM, OPINION AND ORDER This matter comes before the Court on Denis McCarthy’s motion for summary judgment 1 in his adversary proceeding to determine the dischargeability of an alleged debt owed to him by the Debtor, Grayce McCarthy. Denis McCarthy’s complaint is somewhat peculiar. He first argues that as a result of a divorce decree, he is the sole equitable owner of...
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Memorandum Opinion This matter came before the Court on March 17, 1995, for a hearing on confirmation of the debtor’s Chapter 13 plan. At the conclusion of the hearing, the Court took confirmation of the debtor’s plan under advisement to consider the issues it raised, including whether a Chapter 13 plan may provide for different treatment of cosigned consumer debt claims without regard to whe...
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MEMORANDUM The matter being considered here is the motion of Mark Simmons (“Defendant”) for either judgment on the pleadings, or for summary judgment on the Complaint of Lynn Ricci (“Plaintiff’) to determine that a certain debt is not dischargeable as being a debt for alimony, maintenance or support pursuant to 11 U.S.C. § 523(a)(5). This Memorandum is entered after a consideration of the rec...
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ORDER Before the court are motions to dismiss filed by defendants, A Mortgage Company and Virginia Manley; MeCalla, Raymer, Pa-drick, Cobb, Nichols & Clark; B. Keith Rollins; MLA, Inc. and Joya Pastori. Plaintiff, Dorothea Harris Strickland, filed this adversary proceeding pro se, alleging breach of contract, fraud, usury and racketeering. This is a core proceeding pursuant...
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ORDER GRANTING DEBTOR’S MOTION TO DISALLOW BEVINS’ PROOF OF CLAIM This matter is before the Court pursuant to the Debtor’s Motion to Disallow Proof of Claim. William Brian Bevins, including the approximately 550 America West Airlines pilots who have assigned their claim to Mr. Bevins (collectively “Bevins”) to pursue, objects to the Debtor’s motion. A hearing was held March 22, 1995 on th...
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ORDER REGARDING CLAIM OF UNION CENTRAL The matter before the court is the Second Objection of the chapter 11 debtor, Rose’s Stores, Inc., to Landlord Claims, specifically, the debtor’s objection to claim numbers 2975 and 2976 submitted by Union Central Life Insurance Company (Union Central). A hearing was held in Raleigh, North Carolina on January 30, 1995. Union Central’s claim arises from t...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Kenneth A. Kozel (“Kozel”) to modify an order entered by this Court on January 12,1994 (the “January 12th Order”). For the reasons set forth below, the Court hereby denies the motion. I. FACTS AND BACKGROUND On January 12, 1994, the Court issued a Memorandum Opinion and Order which held, inter alia, that the instan...
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*488 MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS In this case, we address whether the appointment of a Chapter 7 trustee upon the conversion of a case in which a Chapter 11 trustee has served begins a new two year statute of limitations period pursuant to 11 U.S.C. § 546(a)(1). 1 This issue has been the subject of debate within circuits througho...
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ORDER THIS MATTER comes before the Court upon the Debtors’ objection to the Proof of Claim filed by the Resolution Trust Corporation (“RTC”) in the amount of One Hundred and Sixty Five Thousand, Fifty-Three and 22/100 ($165,053.22) Dollars. The RTC’s unsecured claim is based upon a guaranty provided by the Debtors to North Carolina Federal Savings and Loan (“Bank”), the RTC’s predecessor, which s...
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OPINION This ease concerns a preferential transfer of money in the form of a cashier’s check. Following trial on stipulated facts, the bankruptcy court determined that a preferential transfer was made to appellant, and awarded judgment of $100,000 for appellee, the Chapter 7 .trustee. WE AFFIRM. FACTS AND PROCEDURE BELOW Peter Lee and Ken Ota, a general partnership, (“Debtor...
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OPINION REGARDING ALLEGED DEBTORS’ MOTION TO DISMISS JOINT INVOLUNTARY PETITION AND PETITIONING CREDITOR’S MOTION TO SEVER On September 20, 1994, Great Lakes Ban-corp commenced an involuntary chapter 7 bankruptcy case against Vern and Patricia Gale, who are husband and wife. Because the Bankruptcy Code provides for a joint bankruptcy proceeding only if the proceeding is voluntary, see 11 ...
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ORDER DENYING PLAINTIFF’S COMPLAINT TO HAVE GOVERNMENT GUARANTEED/INSURED EDUCATIONAL LOAN DECLARED NON-DISCHARGEABLE Heard on February 8, 1995, on the Debt- or’s request for a determination that $22,000 owed to the Defendant for educational loans is dischargeable, under 11 U.S.C. § 523(a)(8)(B). This section makes educational loans nondischargeable in bankruptcy unless “excepting such debt f...
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OPINION AND ORDER This matter is before the Court pursuant to Edward Kosac’s (“Kosac”) nondischarge-ability complaint. Hearings were held February 22, 23, 24, 27, 28 and March 1,1995, on this matter. The Court granted the Debtor until March 8, 1995, to file a response to Kosac’s trial brief and granted Kosac until March 15, 1995, to reply after which the matter was taken under advisement. After...
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ORDER THIS MATTER comes before the Court on the motion of Palmetto Federal Savings Bank of South Carolina (“Bank”) for relief from the automatic stay for cause to allow it to setoff $2,617.24 in funds on deposit in one of the Debtor’s bank accounts with the Bank. The Chapter 7 Trustee (“Trustee”) objected to the motion and argues that the Bank is not entitled to setoff, that setoff would be ine...
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OPINION Appellants, chapter 7 debtors, appeal the bankruptcy court’s rejection of their application for an award of attorney’s fees and damages based on the Appellee’s alleged violation of the section 362 automatic stay. For the reasons expressed in this memorandum, we affirm the bankruptcy judge’s ruling. FACTS AND PROCEEDINGS BELOW Debtors, Gregory Alan McHenry and Michele Lee McHenry (...
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OPINION REGARDING THE EFFECT OF REJECTION ON UNEXPIRED NON-RESIDENTIAL LEASE AND UPON EXECUTORY CONTRACT I. INTRODUCTION CASC Corporation (“Plaintiff’ or “Judgment Creditor”) is the plaintiff in this adversary proceeding and Reese L. Milner II, as successor trustee of the Milner Family Trust (the “Non-Debtor Co-Tenant”), Daniel M. Gottlieb (“Gottlieb”), Steven D. Lebowitz (“Lebowitz”...
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ORDER THIS MATTER is before the Court upon the Motion of the Debtors, Thomas O. Coates and Nina Coates (“Coates”), to value a 1994 Dodge Caravan, VIN 284GH2539RR789352, (“Vehicle”), under lien to Chrysler Credit Corporation (“Chrysler Credit”) pursuant to 11 U.S.C. § 506 1 and the Motion of Chrysler Credit seeking relief from the automatic stay of § 362(d) in reference to its s...
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ORDER This matter is before the Court on the Motion for Summary Judgment filed by the defendant South Carolina National Bank (“SCNB”) on September 3, 1992. The claim against SCNB on which SCNB moves for summary judgment is a § 547 preference claim made by the trustee under the Rule of Levit v. Ingersoll Rand Financial Corp. (In re Deprizio), 874 F.2d 1186 (7th Cir.1989). SCNB’s motion is based on...
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DECISION AND ORDER DENYING DEBTORS’ MOTIONS (DOC. #21 AND #22) TO ALTER OR AMEND JUDGMENT Before the court are motions of the debtors, Larry Morgan and Carlene Morgan, to alter or amend the court’s previous orders of September 20,1994, and September 22,1994. Those orders denied the debtors’ motions to avoid liens under § 522(f) of the Bankruptcy Code. The court has jurisdiction pursuant to 28 U.S....
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Ecclesiastical standards usually have no relevance to the interpretation of civil law. The present case, however, is one of those rare instances in which this Court must apply a statutory rule to the unfamiliar structure of a religious organization. Specifically at issue is whether a congregation of religious nuns may assert individual rights that are normally denied to corporations. In this Ch...
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ORDER THIS MATTER comes before the Court upon the Trustee’s Objection to Property Claimed as Exempt. The Debtor, Mariea M. Eisan (“Ms. Eisan”) asserts that 107 shares of AT & T Stock, 93 units of a Nuveen Tax Free Unit Trust (“Nuveen Trust”) and a Jefferson Pilot IRA are exempt under South Carolina Code of Laws Annotated § 15-41-30, as amended 1 . The Trustee contends that ther...
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ORDER This ease came before the Court on the confirmation of the Second amended Chapter 13 Bankruptcy Plan of Cornelius and Gladys Lee, (“Debtors”). At the confirmation hearing, the Chapter 13 Trustee, John Y. La-Barge, Jr. (“Trustee”), raised an Objection to the Plan in that the Debtors’ claimed exemptions under 11 U.S.C. § 522(d) rather than under Missouri state law. The Bankruptcy Code 1 ...
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Banque Indosuez is the holder of a mortgage which encumbers the debtor’s leasehold interest in property in Dunkirk, New York, on which the Sheraton Harborfront Inn is now located. The debtor, Chadwick Bay Hotel Associates, acquired this interest in 1989 from the Dunkirk Industrial Development Agency. The Sheraton Inn was to represent the first phase of the Upland Site Development for the Harborfr...
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MEMORANDUM DECISION This motion to transfer venue of an action removed from state court presents a poorly understood question regarding the concurrent jurisdiction of state and federal courts to determine whether particular debts are discharged in a bankruptcy case. Here, the debtor in his bankruptcy schedules omitted debts that are allegedly based on indemnification, contribution, neglig...
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MEMORANDUM OPINION Palumbo Family Limited Partnership (the “Partnership”), a debtor in this consolidated bankruptcy case, alleges wrongdoing on the part of its former attorney, Stanley J. Samo-rajczyk, and his law firm, Akin, Gump, Strauss, Hauer, and Feld, L.L.P. (“Akin Gump”). The dispute arose when Akin Gump filed an application to recover fees and expenses from the estate, and the...
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DECISION ON ADVERSARY COMPLAINT OF THE RETIREMENT ACCOUNT, INC., CUSTODIAL IRA, FBO GEORGE SAHAGIAN OBJECTING TO THE DISCHARGE OF CERTAIN DEBTS OF MICHAEL E. ERDHEIM The matter before the Court is an adversary proceeding commenced by the Retirement Account, Inc., Custodial IRA, FBO George Sahagian (the “Plaintiff’) objecting to the discharge of a certain debt of Michael F. Erdheim (the “Debto...
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MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT In this adversary proceeding the Debtor-Defendant has moved for summary judgment in his favor on the Plaintiffs’ Complaint. The subject summary judgment motion was scheduled for hearing on December 12, 1994, at which time the Plaintiffs’ counsel announced the parties’ agreement that the matter could be considered and determined by the ...
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MEMORANDUM OPINION AND ORDER RE DEBTOR’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION This case came on to be heard on Debtor’s motion for a temporary restraining order and preliminary injunction. The injunctive relief sought relates to Debtor’s motion to set aside a foreclosure sale made in violation of the automatic stay. The Court has jurisdiction pursuant to 28 U....
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ORDER Before the court are (1) Debtor’s motion in the main ease for imposition of sanctions against Mitchell Construction Company, Inc. (“Mitchell”) and its attorney, David Rutherford, for willful violation of the automatic stay of 11 U.S.C. § 362(a); and (2) Debtor’s motion to dismiss as untimely the adversary proceeding filed by Mitchell. The issue central to both motions is when Mitche...
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MEMORANDUM OPINION Hazel Hicks Carter, a/k/a Hazel M. Hicks, Debtor, Movant, filed a Motion to Avoid Lien on October 11,1994. W.S. Badcock Corporation, Respondent, filed its response on October 21, 1994. A hearing on Movant’s motion was held on February 15, 1995. The Court, having considered the Stipulation of Facts and the arguments of counsel, now publishes this memorandum opinion. ...
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DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT ON § 523 OBJECTIONS TO DISCHARGE-ABILITY OF DEBT Before this Court are cross-motions for summary judgment in this adversary proceeding which seeks a declaration that the Plaintiffs claim is non-dischargeable under 11 U.S.C. § 523(a)(6). The Plaintiffs motion for summary judgment is deified; The Debt- or-Defendant’s motion for summary judgment is gr...
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*1016 DECISION ON MOTION TO EXTEND TIME TO ASSUME OR REJECT LEASE PURSUANT TO § 365 AND CROSS MOTION TO VACATE THE § 362 STAY Tri-Glied Limited, d/b/a Park Avenue Cleaners, the debtor and debtor-in possession herein, (hereinafter, the “Debtor”) has moved for an order, pursuant to 11 U.S.C. § 365(d)(4), extending its time to assume or reject a lease of nonresidential real property...
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ORDER ON TRUSTEE’S APPLICATION FOR INTERIM COMPENSATION The Chapter 7 trustee has filed an application for interim compensation as trustee, which application asserted that the trustee had collected in excess of $249,000 in this estate, that the trustee has been paid no compensation for his services as trustee, that pursuant to 11 U.S.C. § 326 the trustee’s statutory compensation would exceed $7...
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MEMORANDUM AND ORDER RE DEBTOR’S “APPLICATION FOR WAIVER OF THE CHAPTER 7 FILING FEE ...” In this Chapter 7 case, the debtor, Ezell Shannon, moves this Court for waiver of the Chapter 7 filing fee in a consumer no-asset case. 1 Initially, on October 17, 1994, the debtor filed a voluntary Chapter 7 bankruptcy petition with, among other papers, an attached application and order to pay the filin...
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OPINION NOW before the Court for confirmation is Debtors’ First Amended Chapter 13 Plan (“Plan”). This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr. Proc. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND The Plan provides for 100% payment of three government insured student loans over a p...
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OPINION COMES NOW before the Court for consideration the Motion of General Motors Ac *177 ceptance Corporation (“GMAC”) to Compel Assumption or Rejection of Executory Contract. This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr.Proc. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND On or...
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OPINION NOW before the Court for consideration is the First Interim Application (“Application”) of Winstead Sechrest & Minick, P.C. (“Applicant”), counsel for the Chapter 7 Trustee, Dale L. McCullough (“Trustee”). This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr.Proc. 7052 and disposes of all issues before the Court. ...
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MEMORANDUM OPINION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This proceeding is before the Court on the motion of the defendant, Internal Revenue Service, for summary judgment filed in response to the debtors’ “Complaint to Determine Dischargeability of the Prior Tax Obligations.” At issue is whether tax obligations for the years 1984 through 1987 are excepted from the debtors’ general d...
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OPINION NOW before the Court for consideration is the Objection of Texas Commerce Bank, N.A., (“Movant”) to Schedules and Claim of Exemption (“Objection”). This opinion constitutes findings of fact and conclusions of law to the extent required by Fed.R.Bankr. Proc. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND Movant obtained a judgm...
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OPINION Pursuant to regular setting, the hearing on confirmation of the Chapter 13 Plans in the above referenced eases came before the Court. These cases have been consolidated only for the purposes of this opinion because they present the same issue. This opinion constitutes findings of fact and conclusions of law to the extent required by Fed.R.Bankr.P. 7052 and disposes of all issu...
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OPINION COMES NOW before the Court for consideration Aetna Life Insurance Co.’s Motion for Summary Judgment (Aetna’s Motion) and Debtor Murray Bram’s Motion for Summary Judgment (Debtor’s Motion). Since both motions deal with the same set of facts and raise the same issues, they will be considered concurrently. This opinion constitutes the Court’s findings of fact and conclusions of l...
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MEMORANDUM OPINION This case presents an issue of first impression as to whether a retired officer of the Air Force may effectively seH a fixed number of future monthly payments of his mihtary retired pay to which he is entitled so that title to those payments is vested in the assignee. The question arises because the debtor entered into a financial transaction structured in just such a manner ...
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MEMORANDUM OPINION This matter comes before the Court on certain “Objections to Exemptions,” filed by a creditor, Federal Employees Credit Union of Petersburg, Inc. (“Credit Union”). The Credit Union seeks the denial of certain exemptions claimed by the debtor, Patrice M. Johnson, pursuant to 11 U.S.C. § 522 and Virginia Code §§ 34r4 and 34-26. This is a core proceeding, over which th...
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OPINION Now before the Court are: two Motions of Millege Billy Norton Jr. to Avoid Liens and the Motion of Devra Deniece Norton for Relief from the Automatic Stay. These Motions were combined for hearing and heard 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. FAC...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS PROCEEDING came on for trial December 19, 1994. The Plaintiff is represented by Scott W. Spradley of Orlando, Florida, and by David C. Tassell of Jupiter, Florida. The Defendant is represented by Mark Evans Kass of Miami, Florida. Having received evidence and the testimony of the Defendant, the Court makes its findings of fact and conclusio...
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OPINION Before the Court is the Amended Motion of John Larry and Sally Reid Allen (“Debtors”) to Remand 1 (“the Motion”) pursuant to regular setting in Beaumont, Texas. 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. *820 FACTUAL AND PROCEDURAL BACKGROUND . ...
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THE FINAL DECREE of G.D.C.1 A chapter 11 petition was filed on April 6, 1990 and it appearing: There are strange things done in the Florida sun by the men who moil for gold. G.D.C. sales had their secret tales that would make your blood run cold. Bankruptcy fans have seen big plans but one of the biggest they ever did see, was at the end of the second year, when hope did appear, and we reorganized...
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ORDER GRANTING MOTION FOR CLARIFICATION AND RECONSIDERATION OF MEMORANDUM OPINION AND ORDER GRANTING IN PART AECTRA’S MOTION FOR PAYMENT OF ADMINISTRATIVE CLAIM THIS CAUSE came before the Court for hearing on June 7,1994, and again on August 10, 1994, upon the Trustee’s, Joel L. Tabas, Motion for Clarification and Reconsideration of Memorandum Opinion and Order Granting In Part Motion...
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SUPPLEMENTAL MEMORANDUM OPINION This matter comes before the Court on the motion of The Riggs National Bank of Washington, D.C. (“Riggs”), filed herein on September 2,1994, to amend this Court’s Memorandum Opinion, which was entered on August 30, 1994, and on Riggs’ motion for entry of a final order, filed herein on October 3, 1994. This Court has jurisdiction over this matter pursuant to 28 U....
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MEMORANDUM DECISION On April 9, 1991, Debtors filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code. This Chapter 13 Plan provided that unsecured creditors would receive 65% of allowed secured claims. It further provided that the Debtors would make monthly plan payments of $2,300 for a period of three years. An order confirming the plan was entered on July 22, 1991. Ha...
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MEMORANDUM OPINION TABLE OF CONTENTS Page No. Introduction 989 Procedural Context. 989 - 1004 Phase I. 989 - 998 Phase II 999 Phase III. 999 - 1000 Phase IV. 1000 - 1003 Phase V. 1003 - 1004 Findings of Fact. 1004 - 1006 Relevant Case Law. 1006 - 1009 Conclusion. 1009 - 1012 INTRODUCTION This case is before the C...
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*459 MEMORANDUM OPINION The debtors, Kama! M. Babiker and Debris B. Herasingh, have filed a complaint against the defendant, Citizens Contracting Company, Inc. (“Citizens”), in order to avoid an asserted preferential judgment lien held by Citizens. In lieu of trial, the parties have submitted this matter on briefs and joint stipulation of facts. As its sole defense, Citizens argues that the...
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MEMORANDUM OF DECISION The matter before the court is a motion filed by the defendant, Rose Marie Burner (Debtor), to dismiss this adversary proceeding. The plaintiffs, Cathy Harper (Harper) and Pauline Miller (Miller) (collectively, Plaintiffs), filed a response to the Debtor’s *33 motion and the court took the matter under advisement. I. FACTS 1. On or about May 26, 1994, the Plaint...
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MEMORANDUM This case came on to be heard upon the trustee’s objection to the debtors’ claim of a homestead exemption. The determinative issue in this ease is whether the holder of a remainder interest in a life estate may claim the Tennessee homestead exemption provided for by Tenn.Code Ann. § 26-2-301, which reads in pertinent part: An individual, regardless of whether he is head of a fami...
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MEMORANDUM The issue is whether Vanderbilt University’s post discharge collection action against the debtor violated the discharge injunction in § 524(a) of the Bankruptcy Code. 1 Vanderbilt did not violate § 524(a). The following are findings of fact and conclusions of law. Fed.R.BankR.P. 7052. I. Debtor enrolled at Vanderbilt in September 1989. When he withd...
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MEMORANDUM OPINION Pending before the Court is Dennis Jaluf-ka’s (“the debtor”) Motion for Determination of Tax Liability filed on February 22, 1994. The Court held a hearing on the matter on November 8, 1994, and February 2, 1995. I. Jurisdiction The Court has jurisdiction over this pending matter pursuant to 28 U.S.C. § 1334. Further, the above proceeding is a core...
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MEMORANDUM OPINION ON APPLICATION FOR COMPENSATION AND REIMBURSEMENT Kathleen Horne, former counsel for the Debtor, River Landings, Inc., applied for approval of professional fees pursuant to Section 330 of the Bankruptcy Code. Ms. Horne represented the Debtor in this Chapter 11 proceeding until a recent order was entered permitting her withdrawal. By order dated February 22, 1995, th...
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MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ARISING OUT OF ITS COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT COMBINED WITH NOTICE OF THE ENTRY THEREOF In this adversary proceeding the instant matter before the court arises out of a motion for summary judgment, pursuant to Fed. R.BankR.P. 7056, filed by the plaintiff, Bay Area Factors (“BAF”), in its pending complain...
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ORDER 1 By application Angela McLeroy and Evita Paschall, attorneys for the debtors in the foregoing Chapter 13 cases, seek an award of attorney’s fees in the amount of $950.00 in each case. In essence, counsel seeks an award in excess of the maximum compensation established under General Order Number 9 (1990) issued by the Honorable Lamar W. Davis, Jr., Chief Judge of this...
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MEMORANDUM DECISION ON MOTION TO DISMISS COMPLAINT Allen-Bradley, Inc. (“Allen-Bradley”) commenced this adversary proceeding to impose a constructive trust upon the proceeds realized by Commodore Business Machines, Inc. (“Commodore”) from the court authorized sale of its factory located in Norristown, Pennsylvania, the contents thereof, and the 13.5 acres of real property on which it ...
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DECISION ON CLAIMS OF PAUL J. KEATING, II This is a dispute over claims for reimbursement and indemnification of legal expenses and claims for employment benefits consisting of severance pay, vacation pay and medical expense coverage. At issue is the existence of these employment benefits as an incident to the claimant’s employment, as well as application of a by-law indemnifying offi...
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MEMORANDUM OF OPINION AND ORDER In this voluntary Chapter 7 case, the matter before the Court is a Complaint to Determine Dischargeability of Debt filed by R.E. America (REA), an Ohio corporation, against Theodore M. Garver (the Debtor). The action specifically seeks to prevent the Debtor from obtaining a discharge of a $600,000.00 state court judgment, plus accrued interest, which was taken ...
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MEMORANDUM OPINION Debtors Donald G. Pansegrau and Sue D. Pansegrau (“Defendants” or “Pansegraus”) move to dismiss the amended §§ 523 and 727 complaint of Gerald Geisler (“Plaintiff’ or “Geisler”) pursuant to Fed.R.Civ.P. 56(b), applicable through Bankr.R. 7056. Following are the Court’s findings of fact and conclusions of law pursuant to Bankr.R. 7052. The Court heard Defendants...
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MEMORANDUM OF OPINION ON UTILITY DEPOSIT AND CAPITAL CREDITS OF AN ELECTRIC COOPERATIVE Issue The issue before the court is whether Seminole National Bank’s (SNB’s) perfected security interest covers Debtors’ utility deposit and capital credits with Lea County Electric Co-op (Co-op). The parties stipulated that if the court finds that SNB has a perfected security interest in the ...
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MEMORANDUM OPINION I. INTRODUCTION Debtor filed a motion for rule to show cause why Debtor’s estranged wife should not be held in contempt of court for violating the automatic stay and a prior order of this *343 Court by filing a motion for injunctive relief in Illinois state court. The prior order granted limited relief from the automatic stay to allow marital disso...
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OPINION AND ORDER Before the court is Trustee’s Report On Sale (docket No. 197, filed on July 8,1994) of debtor Ibérica Manufacturing, Inc.’s real property located at Calle Munoz Rivera # 49, Juncos, Puerto Rico. The report of the sale conducted on May 31, 1994 contains a summation of costs as well as the commission paid to the trustee from the proceeds. Although the real property was...
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MEMORANDUM OPINION This proceeding came before the Court on the Bankruptcy Administrator’s motion to dismiss the above styled case for “substantial abuse” pursuant to 11 U.S.C. § 707(b). Appearing before the Court were the attorney for the debtor and the attorney for the bankruptcy administrator. Blair, the debtor, filed this chapter 7 petition on November 30, 1994. After a review of the debt...
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MEMORANDUM DECISION This case involves the division of sales proceeds of real property owned by two tenants in common where one of them had not set foot on the property for many years. The property in question is located in Yuba County near Marysville, Califorma and primarily used as a rice farm (“Rice Ranch” or “the property”). As many Northern Californian hunters know, rice farms attrac...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Sheldon L-. Solow (the “Trustee”) for Midway Airlines, Inc. (the “Debtor”) pursuant to Federal Rule of Civil Procedure 59(e), incorporated by reference in Federal Rule of Bankruptcy Procedure 9023, to alter or amend a judgment entered on January 23, 1995. For the reasons set forth herein, the Court hereby denies th...
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MEMORANDUM OPINION AND ORDER The matters presently before the Court include: (1) the Apphcation for Payment of Arrearages filed by Huntington Bank Mar-tinsburg, N.A.; (2) the Apphcations for Allowance and Payment of Attorney Fees and Expenses to Attorneys for Huntington Bank Martinsburg, N.A.; and (3) the Application for Allowance of Attorney Fees and Expenses filed by Counsel for the...
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MEMORANDUM OPINION Before the Court is a Motion To Dismiss Complaint (“Motion to Dismiss”) filed by United Student Aid Funds, Inc. (“USA Funds”). The Motion was set for a hearing and the Court took the matter under advisement at the conclusion of the hearing. The following shall constitute the Court’s findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052....
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DECISION ON APPLICATION FOR FINAL ALLOWANCE OF ATTORNEYS’ COMPENSATION DECISION This matter comes before this Court on the final application (hereinafter “Final Application”) of Parker Chapin Flattau & Klimpl (hereinafter “Applicant”), counsel to the debtors, for allowance of compensation and reimbursement of expenses. For the reasons set forth herein, a final allowance is grante...
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MEMORANDUM OPINION The Court has before it four adversary proceedings brought by the debtor/plaintiff, Valerie Garrett (“Garrett”), against the respective following defendants: Northstar Guarantee, Inc. (“Northstar”), New Hampshire Higher Education Assistance Foundation (“NHHEAF”), Pennsylvania Higher Education Assistance Agency (“PHEAA”) and Massachusetts Higher Education Assistance ...
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DECISION ON IRS MOTION TO DISMISS Debtor filed this Chapter 7 case September 2,1994, at 11:23 a.m. The United States, on behalf of its agency, the Internal Revenue Service (“IRS”), has filed a motion to dismiss the case for cause pursuant to 11 U.S.C. § 707(a), the cause asserted being bad faith filing or, in the alternative, to prevent an abuse of this Court’s process. Debtor filed a memorandu...
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ORDER This Order addresses the motion of Kathryn Faulstich (“Movant”) to reopen this closed Chapter 7 Bankruptcy case to permit modification of the injunctive provisions of the Order of Discharge. This is a core proceeding pursuant to Section 157(b)(2)(A) and (0) of Title 28 of the United States Code. The Court has jurisdiction over the parties and this matter pursuant to 28 U.S....
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MEMORANDUM This matter is before the Court on a complaint by Virginia Vaughn (“Plaintiff’) to determine dischargeability of certain debts that arose from a judgment entered against Gerard M. Quinn (“Debtor”) by the St. Charles, Missouri, County Circuit Court. The Plaintiff has requested the debts be declared non-dischargeable as based on allegedly willful and malicious actions of the Debtor, pur...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Amended Complaint to Determine Dischargeability of Debt filed by Pamela Sue' Bega (“plaintiff’) to determine the discharge-ability of a student loan debt under 20 U.S.C. § 1087(c). A scheduling conference was held on January 9, 1995. Plaintiff was represented by and through her attorney, Tom D. Fulzenloger. Defend...
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MEMORANDUM The trial of these matters was commenced on March 6, 1995 and concluded on March 8, 1995. The parties agreed that the trial of the Adversary Proceeding would be consolidated with the hearing on the motion of Curt Ogden (“Plaintiff’), to reconsider an order that denied a request for the appointment of a trustee. At the conclusion of the trial, the matters were submitted to t...
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DECISION ON MOTION FOR SUMMARY JUDGMENT In this adversary proceeding, the debtor, Washington Bancorporation (“WBC”), seeks *331 to recover a $1.47 million payment (“Payment”) made to the defendant, Luther H. Hodges, Jr. (“Hodges”), by way of a preference or fraudulent conveyance action. Under the court’s consideration is the defendant’s motion for summary judgment. For re...
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OPINION A INTRODUCTION Presently before the court are two motions arising out of the above-captioned adversary proceeding. The first is the motion of the Plaintiff/Debtor, SACRED HEART HOSPITAL OF NORRISTOWN (“the Debtor”), for summary judgment in its favor on the claims it brought against INDEPENDENCE BLUE CROSS, (“IBC”), the Defendant (“the S/J Motion”). In the Complaint, t...
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ORDER This matter comes before the Court on the Motion for Summary Judgment filed on December 27, 1994, by the plaintiff Jere F. Moore (hereinafter “Moore”). Moore’s Motion arises in an adversary proceeding he commenced against the debtor Delores L. Gill (hereinafter “Gill”) as a Complaint to Determine Dischargeability of Fraud Judgment. As such, the matters involved herein constitute...
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MEMORANDUM OPINION The chapter 7 trustee has brought the above adversary actions seeking an order directing defendants to turn over to him as trustee the non-exempt portion of debtor’s interest in a deferred compensation plan (hereinafter “DCP”). The trustee alleges that the res in question is property of debt- or’s bankruptcy estate that could be utilized to make partial d...
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MEMORANDUM This is the third Chapter 12 bankruptcy case filed by Fern Acres Ltd. I conclude that the filing of this case constitutes an abuse of the bankruptcy process and, I hereby sustain the Motion for Relief from Automatic Stay and Motion to Dismiss filed by Lisco State Bank. FACTS The debtor in this ease, Fern Acres, Ltd. (“Fern Acres”), is a farming operation which obtained financin...
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MEMORANDUM OF DECISION Debtor Citicorp Park Associates (“Citi-corp”) has filed this motion seeking permission to apply a pre-petition fee retainer and post-filing cash collateral towards allowed attorney’s fees. Aetna Life Insurance Company (“Aetna”) objects and maintains that the rents from Citicorp’s property used to fund the retainer are the property of Aetna, and that Citicorp may...
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AMENDED MEMORANDUM DECISION I INTRODUCTION Ronald L. Durkin, Trustee of the Benchmark Irrevocable Trust (“Trustee”), duly authorized representative of Imperial Corporation of America (“ICA” or “Debtor”) and its creditors, seeks an order compelling disgorgement of fees and reimbursed expenses in the aggregate sum of $843,003.39 by Shea & Gould (“S & G”), special litigation counse...
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DECISION AND ORDER ON MOTION PURSUANT TO LOCAL RULE ¡22, BANKRUPTCY RULES 1001(c), 90U AND 11 U.S.C § 361(c)(2) OR 361(d)(1) APPROVING A CERTAIN REFINANCING AND MODIFICATION AGREEMENT By application, the debtors request: the Court sign an Order granting debtors’ Motion to approve obtaining credit under the proposed Modification Agreement which, inter alia, (a) requires individual debtors’ to grant...
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*203 MEMORANDUM OPINION AND ORDER The matter before the court is the Motion of Midwest Mechanical (“Midwest”) for Partial Summary Judgment against William H. Grabscheid, as Trustee (“Trustee”) of VIII South Michigan Associates (“VIII South” or “Debtor”) with respect to the Trustee’s complaint seeking the return of certain payments made by VIII South to Midwest during the preference period, ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtor’s Motion for Summary Judgment, Memorandum in Support, and Reply; and Internal Revenue Service’s Motion in Opposition, Memorandum in Support, and Notice of Filing. This Court has reviewed the arguments of Counsel, exhibits, as well as the entire record of the case. Based upon that review, and for the followin...
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OPINION Before the Court in each of these cases is the Motion to Allow Claim filed by AgriBank, FCB (BANK) and the Debtors’ objection. Agri-Tech Farms is a partnership consisting of Wallace LeRoy Green, Kenneth L. Green, and Forrest L. Green. The partnership and all three partners filed separate Chapter 11 eases in bankruptcy. In October of 1981, Agri-Tech Farms’ predecessor (WGFK Fa...
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This adversary proceeding is before the court on the Trustee’s motion for partial summary judgment as to four defendants. First, the Trustee seeks summary judgment as to the City of Powder Springs (the “City”), who holds ad valorem tax liens against real property of Debtor. Postpetition, the City recorded writs of fi. fa. as to those tax liens. Second, the Trustee seeks summary judgment as to the ...
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OPINION Presently before the Court are two Motions for Summary Judgment filed by Defendant SKF USA, Inc., d/b/a CR Services and CR Industries (“SKF”). In the first motion (“Motion I”), SKF seeks summary judgment against debtor/plaintiff, Friedman’s Express, Inc. (“Debtor”), on the ground that Debtor lacks standing to bring the freight undercharge claims asserted in the complaint. In t...
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ORDER DENYING DEBTOR’S MOTION FOR RECONSIDERATION AND AMENDMENT OF JUDGMENT 1 The debtor asks the Court to reconsider an order entered June 15, 1994, denying the debtor’s application for authority to employ special counsel nunc pro tunc. The June 15, 1994, order allowed the employment of special counsel for appellate work performed in Franklin Savings Corporation...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS The matter before the court in this adversary proceeding is the motion to dismiss filed by the defendant, the State of Florida Department of Revenue (DOR). The plaintiff, Richard D. Sparkman, is the chapter 7 trustee of the debtor, York-Hannover Developments, Inc. (YHDI). Mr. Sparkman brought this adversary proceeding to recover three...
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OPINION In this action, debtor Ronald Doerge seeks a determination that his federal income tax liabilities for years 1975-1981 were not timely assessed and are, therefore, dischargeable under 11 U.S.C. § 528(a)(1). 1 The debtor additionally seeks a determination of the validity of tax hens filed by defendant, United States of America, for years 1975-1977, as well as a deter...
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MEMORANDUM OPINION The matter before the court is the complaint of PNC Bank, National Association, successor by merger to Provident National Bank (hereafter “PNC”), objecting to the claim of Bucks County Tax Claim Bureau (hereafter “Bureau”) for 1991 property taxes (county, township, and school).1 PNC objects to inclusion of interest and penalties in the Bureau’s claim. PNC also seeks subordinatio...
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MEMORANDUM OPINION The matter before the court is the trustee’s complaint for turnover against Debtor. The parties have submitted the matter on the pleadings and briefs. 1 There are no material facts in dispute. The trustee seeks to recover Debtor’s interest in an Individual Retirement Account (IRA). 2 Debtor contends that under the United States Supreme Court’s deci...
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MEMORANDUM OPINION This matter came before the Court on the final evidentiary hearing on the Motion for Relief from Stay filed by City National Bank of Florida (“City National”) (Doc. No. 4). Appearing before the Court were David Shields, attorney for the Movant; Roy Beach, attorney for the Debtor; and Carl Spate, attorney for Boston Investors Group, Inc. After receiving testimony, exhibits and...
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MEMORANDUM OPINION Greensboro Lumber Company, Debtor, filed on December 6, 1993, its “Debtor’s Objection to the Claim of the IRS, Debtor’s Motion to Determine Amount of Claim Held by the IRS, Debtor’s Motion to Subordinate Certain Claims of the IRS, and Debtor’s Motion for Refund from the IRS for Overpayment Made to the IRS in Connection with Its Secured Claim.” The United States of A...
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OPINION This is an action to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and § 523(a)(4) of the Bankruptcy Code. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. § 157 and § 1334. This is a core proceeding in which the Court is authorized to hear and determine all matters relating to this case. 28 U.S.C. § 157(b)(2)(7). FACTS Harlan ...
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*485 MEMORANDUM The Court has considered the fee application of Deitz & Freeburger, P.S.C., attorneys, and specifically addresses the request to award an hourly rate of $190.00 per hour to one of the attorneys, Merritt S. Deitz. In keeping with the Court’s approach adopted in In re Optical Corp. of America, Inc., 157 B.R. 823 (Bankr.W.D.Ky.1993), the Court will allow an hourly rate of $185.00 p...
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MEMORANDUM OPINION This matter comes before the Court on the objections of Darell Sayer (“Sayer”) and Linda B. Todd (“Todd”) to the confirmation of the debtor’s Chapter 13 Plan. The parties submitted respective briefs on the issue of whether the monies awarded Sayer and Todd in a state court divorce proceeding should be treated as priority claims and paid in full through the debtor’s ...
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MEMORANDUM OF DECISION In this adversary proceeding, third-party defendant Keven A. McKenna (“McKenna”) has moved to dismiss the third-party complaint. The motion poses the question whether this court has 28 U.S.C. § 1334 “related-to” jurisdiction or 28 U.S.C. § 1367 “supplemental” jurisdiction over a third-party dispute between non-debtors. For the reasons set forth below, I conclude...
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REASONS FOR DECISION This matter comes before the Court after trial on the merits of the plaintiffs’ complaint to determine the dischargeability of certain debts allegedly due the plaintiffs by the debt- or. This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2). This Court has jurisdiction pursuant to 11 U.S.C. § 1334 and by reference from the District Court pursuant to Local Distri...
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MEMORANDUM DECISION Leonard Gumport, chapter 7 trustee of the estate of Transcon Lines, has brought a motion under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), seeking to recover attorney’s fees and costs incurred in litigating the legality of certain regulations issued by the Interstate Commerce Commission. Based upon the following discussion, the court finds the award of fees appropria...
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ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT DUE TO MISTAKE This matter comes before the Court pursuant to the Motion For Relief From Judgment *645Due to Mistake filed by American Freight System, Inc. (“plaintiff’). The motion alleges in pertinent part that: the Reply Brief of AFS to the Supplemental Submission was not delivered to the Clerk of this Court in Topeka, Kansas, and therefore it wou...
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ORDER DENYING MOTION FOR STAY OF ORDER PENDING APPEAL This matter comes before the Court pursuant to the Motion For Stay Of Order *647Pending Appeal filed by American Freight System, Inc. (“plaintiff’)- The motion seeks an order staying any action on the Judgment and Memorandum Opinion and Order entered by this Court on March 30, 1995 (“Judgment”), pending plaintiffs appeal. The Court’s Judgmen...
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OPINION This matter is before the Court upon the Motion of Jenkins Court Pennsylvania, L.P. (“JCP”) to Dismiss, or, in the alternative, For Relief From the Automatic Stay (the “Motion”). The Motion is opposed by the Debtor, Jenkins Court Associates Limited Partnership (the “Debtor”). A preliminary hearing was scheduled for March 6, 1995, however, in lieu of an evidentiary hearing on t...
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MEMORANDUM OPINION Plaintiffs request amendment of a default judgment in the amount of $10,270.99 previously entered in their favor. They seek an additional award of punitive damages in the amount of the attorney’s fees and costs they incurred as a consequence of debtor’s bank *798 ruptcy filing as well as a determination that this debt is excepted from discharge pursuant to 11 U.S.C. § 523...
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MEMORANDUM OPINION General Electric Capital Corporation (hereinafter “GECC”) asserts that it is an oversecured creditor and seeks allowance pursuant to § 506(b) of the Bankruptcy Code of attorneys’ fees and expenses in the amount of $299,960.58. In addition, GECC seeks allowance of a portion of these attorneys’ fees in the amount of $160,134.50 as a chapter 11 administrative claim pur...
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DECISION AND ORDER CONVERTING CASE TO CHAPTER 7, AND GRANTING PARTIAL RELIEF ON DEBTOR’S REQUEST FOR SANCTIONS AGAINST THE INTERNAL REVENUE SERVICE Heard on January 20, 23, and 25,1995, on: (1) the United States Trustee’s Motion to Convert the case to one under Chapter 7; and (2) the Debtor/Plaintiffs motion against the IRS for default judgment on the merits, or for preclusion, and for mo...
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AMENDED MEMORANDUM DECISION PROCEDURAL HISTORY This matter comes before this Court on an objection to proof of claim filed by James D. Fox, the Chapter 7 Trustee (hereinafter “Trustee”), on January 14, 1993. On February 16, 1993, Concrete Equipment Co., Inc. (hereinafter “CECO”) filed its response. At the May 26, 1993 hearing on the objection to proof of claim, this Court ordered the parties to...
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MEMORANDUM DECISION Preliminary Statement On June 22, 1992, a Complaint To Determine Dischargeability Of Debt pursuant to 11 U.S.C. § 523 was filed by RICHARD JOHNS, the Plaintiff herein. The Defen-danVDebtor filed an Answer on October 22, 1992. The parties subsequently engaged in pretrial proceedings and on April 9,1993, the parties filed a Joint Pretrial Order. The Court reques...
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MEMORANDUM DECISION Procedural History MICHAEL P. O’BRIEN and BARBARA A. O’BRIEN, the Debtors herein, filed their Chapter 13 petition and Chapter 13 plan on September 24, 1993. A hearing on the confirmation of the Chapter 13 Plan was held on April 15, 1994. At that hearing, Ralph McDonald, the Chapter 13 Trustee, and the Debtors agreed that essentially a legal issue had arisen as to the tre...
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OPINION Prior to filing his bankruptcy petition, debtor entered into a loan agreement with Scott Credit Union (“SCU”). Pursuant to the terms of the agreement, SCU had the authority “to place a lien on (to freeze) [debt- or’s] present and future shares, share certificates and dividends to the extent of that portion of [debtor’s] loan which is in default. ...” See Exhibit A a...
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MEMORANDUM OPINION The matter before the court is Debtor’s objection to the claim of Christine Lawrence (hereafter “Respondent”). 1 The Official Committee of Unsecured Creditors joined in Debtor’s objection. Before the bankruptcy was filed, a motion for summary judgment was pending in Respondent’s wrongful death action in state court. The state suit included a products liability claim again...
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OPINION The Trustee in the above Adversary seeks recovery against the Defendant for alleged preferential transfers and fraudulent transfers under 11 U.S.C. § 547 and § 548, asserting that the transferee-defendant was an insider of the Debtor. The Trustee has engaged the law firm of Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc. (the “Firm”) as his counsel to conduct the litigation...
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Memorandum I. Introduction This matter is before the Court on the United States Customs Service’s (“Customs”) objection to a proposed Agreed Order between the Chapter 11 Trustee and the Internal Revenue Service (“IRS”) which compromised and settled the IRS’s claims, including the treatment of a tax refund owed by the IRS to the estate. Customs asserts a right to setoff against the IR...
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REASONS FOR DECISION This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2). This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and by virtue of the reference by the District Court pursuant to Local District Court Rule 22.01 incorporated into Local Bankruptcy Rule 1.2. No party at interest has sought to withdraw the reference to the bankruptcy court, nor has the District Court ...
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MEMORANDUM OF OPINION AS TO PUNITIVE DAMAGES AND ATTORNEYS’ FEES In June 1989 George Frederick Klause purchased the Palm Crest, a sixty-two unit apartment building in Riverside, for $3,472,- *490 000. At the time of sale, the Palm Crest had a contract with nearby University of California at Riverside to use the apartments (all furnished) as a freshman dormitory. After the pur...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed by the Chapter 13 Trustee, Mark W. Swimelar, Esq. (“Trustee”), on October 3, 1994, seeking an order dismissing or converting the case of Michael and Pauline Cutillo (“Debtors”) pursuant to § 1307(c) of the Bankruptcy Code (11 U.S.C. §§ 101-1330) (“Code”). The motion was initially hea...
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MEMORANDUM OF DECISION The facts of this proceeding are not in dispute. On March 16, 1993, Debtor Robert C. McAuliffe filed for protection under Chapter 7 of the Bankruptcy Code. As of the petition date, McAuliffe owned real property in North Waterboro, Maine (the “Residence”), which property was encumbered by several mortgages, including, a mortgage (the “Mortgage”) in favor of GMAC Mortgage...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter is before the Court by way of an objection filed by the Chapter 13 trustee, Mark W. Swimelar, Esq. (“Trustee”), on November 22, 1994. Trustee seeks a denial of confirmation of the Chapter 13 plan (“Plan”) of Joseph D. Klevorn (“Debtor”), as well as a dismissal of Debtor’s case. The hearing on confirmation of t...
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MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT IN FAVOR OF FWB BANK The court has before it Cross Motions for Summary Judgment filed by FWB Bank (“FWB”) and the Chapter 7 trustee. The parties request this court to summarily decide whether FWB has a perfected security interest in the debtors’ account at Shearson Lehman Brothers, Inc., (hereinafter, the Shearson account). The funds from t...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter comes before the Court by way of an objection filed by National Bank and Trust Company (“NBT”) to the Chapter 13 First Amended Plan proposed by Ralph M. Javarone and Debra Javarone (“Debtors”) on August 29, 1994. Also before the Court is NBT’s motion, dated September 20, 1994, for dismissal and for s...
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MEMORANDUM DECISION PROCEDURAL HISTORY This matter comes before this Court on an “Application for Sanctions Against Edward Conter ” filed on November 30, 1992 by LITTLE PAT, INC. (hereinafter “Little Pat”). On November 30,1992, ROBERT J. DAVIS, the Chapter 7 Trustee (hereinafter “the Trustee”) filed an “Application for Sanctions Against Edward Conter” which ...
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OPINION I. FACTS Appellee and Debtor, Sateesh Apte (“Dr. Apte”), is a neurologist. He is also the founder of several corporations, including Apte Group, Inc. (“Apte Group”), a management company. In August, 1989, Apte Group leased a 48,000 square foot office building in Pleasanton, California from Rosewood Associates (“Rosewood”). Dr. Apte intended to sublease the office space to other medi...
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OPINION Introduction. The above debtor, PVI Associates, (“PVI”) a Pennsylvania General Partnership, has filed an adversary action against the numerous above named defendants alleging violations of its constitutional and civil rights. PVI seeks injunctive and declaratory relief with respect to the alleged violations, together with compensatory damages, punitive damages, costs ...
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OPINION Before HAGAN, CASE, 1 and ASHLAND, Bankruptcy Judges. Presidential Corporation (“debtor”) is a debtor under chapter 7 of Title 11, United States Code. Michael McCarty (“trustee”), the bankruptcy trustee, filed suit against a number of parties to recover a fraudulent conveyance. The bankruptcy court granted a motion for summary judgment in favor of Richard James...
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DECISION ON COMPLAINT BY TRUSTEE SEEKING TO AVOID A MORTGAGE DUE TO FORGERY This matter is before the Court pursuant to a complaint by the Trustee of the Bankruptcy Estate of Sebastian Piazza (the “Trustee”), seeking to void a mortgage lien based on the Trustee’s allegation that the signature of Sebastian Piazza (the “Debtor”) on a certain note and mortgage in favor of A & C Holding Co. (the “Def...
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MEMORANDUM OPINION AND ORDER R.K. Leasing & Rental Systems (R.K. Leasing) brings this Motion to Set Aside Default Judgment pursuant to Rule 55(c) of the Federal Rules of Civil Procedure and Rule 7055 of the Federal Rules of Bankruptcy Procedure. This Court conducted a hearing on March 23, 1995. For the reasons stated herein, the Court finds in favor of R.K. Leasing and sets aside the ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on motions by Megan Racine Associates, Inc. (“Debtor”) and Federal Deposit Insurance Corporation (“FDIC”), as receiver for the New Bank of New England, in the adversary proceeding commenced by Niagara Mohawk Power Corporation (“NIMO”) against Debtor and FDIC. On or about February 28, 199...
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MEMORANDUM OPINION AND ORDER This adversary proceeding under 11 U.S.C. § 523(a)(1) was submitted for decision on stipulations and briefs. Upon consideration thereof, and of the record herein, this Court, pursuant to F.R.B.P. 7052, finds, concludes, and orders as follows. Procedural history of the matter is set forth in “Findings of Fact.” FINDINGS OF FACT Randall Dee Lamborn and Teresa ...
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MEMORANDUM This case is before the Court upon the motion of Mae Darlene Harker (“Debtor”) to dismiss the case. The Chapter 7 Trustee, C. Kenneth Still, (“Trustee”) opposes the motion. For the reasons hereinafter stated, the motion shall be denied. I. The Debtor filed her voluntary petition for relief (“the Petition”) under Chapter 7 of Title 11 of the United States Code on December 13, 19...
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DECISION AND ORDER ON MOTION SUMMARY JUDGMENT RE CLAIM OF CONTROLLED POWER COMPANY A creditor, Controlled Power Company (“CPC”), filed claim # 3553 in these consolidated eases in the amount of $7 million. In support of its claim, CPC attached a copy of a complaint which it had filed in a U.S. District Court, allegedly causes of action against Eagle-Picher for breach of warranty, breach of contr...
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MEMORANDUM This Chapter 13 case is before the Court on the Motion to Vacate Order of Discharge and to Reconsider Payment of Claim filed on behalf of a creditor, Continental Casualty Company, d/b/a CNA Insurance Companies (“CNA”). For the reasons hereinafter stated, the motion shall be denied. I. This voluntary Chapter 13 case 1 was filed on December 7, 1993. The p...
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MEMORANDUM This matter came before the court on April 18, 1995, upon the application of the debtor-in-possession to hire attorneys and the objection of the United States Trustee thereto. For the reasons set forth below, the U.S. Trustee’s objection will be sustained. The following constitute findings of fact and conclusions of law. F.R.B.P. 7052. *324I On March 10, 1995, the debtor in possession ...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Motion to Dismiss Amended Complaint or for Summary Judgment and Motion to Reconsider” filed by the Debtor, James J. McKeman, Jr. (the “Debtor”). The Plaintiff, the Cadle Company (“Cadle”), filed an Opposition to the Motion. II. PROCEDURAL HISTORY The Debtor filed a voluntary petition under Chapter 13 on January ...
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ORDER This matter is before the Court on the complaint of Clay Carl Campbell (“Campbell” or “Debtor”) for a determination of the dis-changeability of his 1982 federal income tax debt in his Chapter 7 bankruptcy case pursuant to 11 U.S.C. § 523(a)(1)(B). The United States of America (“IRS” or “United States” or “Defendant”) 1 has consented to a judgment discharging the Debto...
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MEMORANDUM OF DECISION Introduction Seven months after a Chapter 11 reorganization plan for Maine Pride Salmon, Inc., (“Maine Pride,” “debtor” or “reorganized debtor”) was confirmed, its case was converted to Chapter 7. Moore-Clark Co. (Canada), Inc., (“Moore-Clark”) remains unpaid for goods supplied on credit to Maine Pride after confirmation, but before conversion. It has m...
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DECISION and ORDER ON TODD MOTION FOR RELIEF FROM STAY This Chapter 11 case was filed November 16, 1994. The petition recites that the business of the debtor is “Operation of Marina for Pleasure Craft.” Schedule D filed with the bankruptcy petition makes reference to Robert Todd as the holder of a mortgage in the amount of $1,550 million. Debtor filed a disclosure statement and a plan of ...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR CLARIFICATION THIS MATTER was heard on the Debt- or’s motion for Clarification and Determination of Amount and Manner of Payment of Claim with respect to the claim of the Internal Revenue Service (IRS). The Debtor seeks to clarify whether or not he is required to pay post-confirmation interest on the IRS’ claim, the rate of interest if required, and t...
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MEMORANDUM DECISION ON COMPLAINT TO DETERMINE EXTENT, VALIDITY, AND PRIORITY OF CLAIMS THIS CAUSE came before the Court on August 15,1994 on Plaintiffs’, Rogeho Suarez and Robert L. Roth, Trustee, Second Amended Complaint to Determine Extent, Validity, and Priority of Liens of the United States of America (hereinafter “IRS”) for Federal Income Taxes, Penalties and Interest, and Compla...
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*810 OPINION A. INTRODUCTION The contested matters and proceeding before us arising out of the instant case require us to revisit our holding, in In re Gathright, 67 B.R. 384, 387-88 (Bankr.E.D.Pa.1986), appeal dismissed, 71 B.R. 343 (E.D.Pa.1987), that the “good faith” requirement for confirmation of Chapter 13 plans, set forth at 11 U.S.C. § 1325(a)(3), does not include an inquiry...
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Tiffany Promotions (the “Plaintiff’) commenced the instant adversary proceeding against Robert E. Forman (the “Debtor” or the “Defendant”), seeking to have its judgment debt in the amount of $100,000 plus interest and attorneys fees in the amount of $15,000 deemed non-dischargeable pursuant to 11 U.S.C. Sec. 523(a)(2)(A) and/or (a)(2)(B) of the Bankruptcy Code. The Plaintiff filed a motion for su...
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MEMORANDUM OPINION The matter before the court is Debtor’s Objection to the Claim of Dale A. and Bonnie Carr (hereafter “Carr”). Prior to the filing of this bankruptcy, the Illinois state court denied Debtor’s motion for summary judgment. Resolution of a claim dispute is a core matter under 28 U.S.C. § 157(b)(2)(B). In In re Chateaugay Corp., 111 B.R. 67, 78 (Bankr.S.D.N.Y.1990), aff'd 146 B.R. 33...
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ORDER This matter comes before the Court on the Complaint of the debtor SMS Investment Associates, Inc. (hereinafter “Debtor”) filed on December 7, 1992 against the City of Peachtree City (hereinafter “Peachtree City” or “City”). By commencing this proceeding, the Debtor requests this Court to order Peachtree City to turn over property of the estate. As such, the matters involved herein constitu...
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*348 MEMORANDUM OPINION I. INTRODUCTION The Trustee seeks to equitably subordinate Salson Express Co., Inc.’s (“Salson”) $300,000 secured claim and to transfer Sal-son’s lien to the estate. The Trustee alleges that: 1) Salson is an insider of the Debtor and was used by principals of one or both corporations as a conduit to infuse capital into the Debtor disguised as secu...
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MEMORANDUM Mr. William Earl Bradford (“Mr. Bradford”), the debtor in this voluntary Chapter 7 case, filed this adversary proceeding against J.C. Bradford & Company (“J.C. Bradford”) for employment discrimination. He alleges that J.C. Bradford fired him solely because of his bankruptcy, a violation of Bankruptcy Code § 525(b) 1 . *912 J.C. Bradford has filed a ...
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DECISION AND ORDER The matter before the court for decision arises out of the trustee’s objection to the claim of exemptions by the debtor. The issue is whether the debtor made a timely filing of his homestead deed, thereby perfecting his claim of exemption. For the reasons stated in this decision and order the trustee’s objection to the debtor’s claim of exemptions will be sustained. FACTS ...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO CLAIM The debtor, Claims Group Administrators, Inc., commenced this Chapter 7 bankruptcy case on May 7, 1992. The Trustee, Mary C. Walker, filed an Objection to Claim on March 2,1995, asserting that the Tennessee Department of Revenue’s Proof of Claim was filed after the September 14, 1992 claims bar date and that payment of the Department’s claim should, the...
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Memorandum Opinion and Order on Request for Allowance and Payment of Administrative Expenses On August 16, 1994, the Court held a hearing at Anniston, Alabama, on Eric Jones Customs Brokerage (“Jones”) request for allowance and payment of administrative expense under 11 U.S.C. §§ 503(a) and 503(b), and the asserted priority of said administrative expense under 507(a)(7)(F). The debt- or’s...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Defendant’s Motion to Dismiss and Motion for Summary Judgment; and upon Plaintiffs Memoranda in Opposition. 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 Defendant’s Motion for Summary Judgment...
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ORDER This litigation alleges improper conduct, defective disclosures and erroneous valuation information in connection with confirmation of debtor’s plan of reorganization. The underlying factual circumstances are of record and will not be repeated, except as necessary for entry of this ruling. See S.N. Phelps & Co. v. Circle K Corp. (In re Circle K Corp.), 171 B.R. 666, 667-6...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtor’s Motion to Show Cause as to why the City of Toledo Department of Public Utilities should not be held in contempt for violating the Automatic Stay. A Hearing was held and the Parties were instructed to file Briefs with the Court, and if further oral argument was needed the Parties were to request the same. The Parties...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court after Hearing on Plaintiffs Motion to Show Cause *497 and for Sanctions on Defendant Philips Display, Plaintiffs Statement of Time and Expenses, and the Response of Defendant Philips Display. This Court has reviewed the arguments of counsel, exhibits, as well as the entire record in the case. Based upon that review, and for t...
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ORDER On this 17th day of April, 1995, the Motion for Order Directing Payment of Trustee’s Fees from Escrow Account filed by the Trustee, Robert D. Hemphill, and the Response to Motion for Payment of Trustee’s Fees filed by the creditor, Idabel National Bank (“the Bank”), came before this Court for consideration. The Court ordered the Office of the United States Trustee to comment, which it d...
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MEMORANDUM This matter came before the court upon the debtor’s Amended Complaint for turnover of property of the estate under § 543 1 or, in the alternative, to avoid a preferential transfer under § 547(b) or recover amounts set off under § 553(b)(1). For the reasons set forth below, the court will grant recovery of setoff under § 553(b)(1). The following constitute findings of...
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MEMORANDUM OF DECISION The matter before the court is an objection filed by the Chapter 7 trustee, Josiah L. Mason (Trustee), to proofs of claim presented by Kennard Meng (Meng), Charles Misto-vich (Mistovich), Terry Simpkins (Simpkins) and David Rohe (Rohe) (collectively, the Claimants). Following a hearing, the court took the matter under advisement. I. FACTS In 1991, Artesian Indus...
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ORDER On the 11th day of April, 1995, the creditor’s, Wilburton State Bank, Motion to Dismiss and Motion for Relief from Stay came on for an evidentiary hearing in McAlester, Oklahoma. After a review of the above-referenced pleadings, hearing testimony presented and arguments of counsel, this Court does hereby enter the following findings and conclusions in conformity with Rule 7052, Fed.R.Bankr...
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*32ORDER DENYING DEMAND BY DEFENDANT FOR A JURY TRIAL At a hearing held in this matter on April 11, 1995, we asked the parties to address the issue of whether Defendant was entitled to a jury trial. Based upon the arguments of Counsel and the pleadings on file with this Court, we hold that Defendant is not entitled to a jury trial for two separate and distinct reasons. First, both sides are seeki...
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*172 MEMORANDUM OF DECISION DENYING CREDITOR’S MOTION TO CREDIT BID AT AUCTION WHBB, a secured creditor, moves 1 for permission to credit bid the entire amount of its claim at a proposed post-confirmation auction of the equity interest 2 in Debtor, a limited partnership that owns and operates the Brattleboro Inn and Conference Center. WHBB holds three mortgages on the Inn real estate, and...
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MEMORANDUM OF DECISION DENYING CONFIRMATION OF DEBTOR’S CHAPTER 11 PLAN WHBB, a secured creditor, objects 1 to confirmation of Debtor’s Chapter 11 Plan because it proposes $600,000 in post-confirmation financing, secured by a superpriority lien that primes WHBB’s first lien in Debt- or’s assets. We held at the confirmation hearing that the Bankruptcy Code does not authorize superpriority hens...
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TWA has objected to claim number 12849 filed by Larry E. Tyree Co, Inc. and Tyree Environmental Services, Inc. TWA has filed a motion for summary judgment in support of that objection. This is the court’s decision on TWA’s motion in this core matter. 28 U.S.C. § 157(b)(2)(B). I. Legal Standard On a motion for summary judgment, the court will view the record and the inferences therefrom in the ligh...
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OPINION Nelson filed a Chapter 7 petition and scheduled $20,000 as exempt under Washington Revenue Code § 6.15.020 (RCW) as it pertains to an IRA. The trustee asserts that the exemptions found in RCW § 6.15.020 im-permissibly connect ERISA and IRA treatment, and are therefore invalid. The bankruptcy court allowed the exemption. We affirm. *586 FACTUAL BACKGROUND The...
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In this consolidated adversary proceeding, the defendant Conston Corporation has filed a motion to dismiss pursuant to Fed. R.Bankr.P. 7012(b). This is the court’s decision on this core matter. 28 U.S.C. § 157(b)(2)(B). I. Facts On this motion to dismiss, the court will consider and assume to be true the well-pleaded allegations of the complaint. The court will also consider certain other matters ...
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MEMORANDUM OPINION The Court conducted an evidentiary hearing on April 10, 1995, on the Motion for Sanctions against C. Elvin Feltner (“Felt-ner”) filed by Warner Bros. Domestic Television Distribution, a division of Time Warner Entertainment Company, L.P.; MCA Televi *660 sion Limited; Paramount Pictures Corporation; Columbia Pictures Television, Inc.; Jim Victory Televi...
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OPINION OVERVIEW The debtor appeals an order of the bankruptcy court modifying the automatic stay to allow a claimant to pursue an employment discrimination action against the debtor in the district court. We AFFIRM. FACTS AND PROCEEDINGS BELOW The Santa Clara Fair Association terminated Deirdre Sanders’ employment as assistant bookkeeper in November 1991. On February 3, 1992, Sanders f...
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OPINION This case involves the enforceability of dragnet clauses in Arizona. The appellant, creditor Western Farm Credit Bank (“WFCB”), contends the debtors’ personal guarantee of loans made to a partnership and corporation is secured by dragnet clauses in security agreements and mortgages the debtors executed to obtain unrelated personal loans. The bankruptcy court found the dragnet ...
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ORDER DENYING COHEN, SHAPIRO’S MOTION FOR RECONSIDERATION Before the Court is the Motion of Cohen, Shapiro, Polisher, Shiekman, and Cohen (Cohen Shapiro) for Reconsideration of our February 17, 1995 Order awarding it compensation in the amount of $525,498, and expenses of $39,936 for legal services rendered to the Debtor. In its motion, and as grounds therefor, Cohen Shapiro states: [ajmong...
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OPINION Before ASHLAND, VOLINN and MEYERS, Bankruptcy Judges. LCO Enterprises leased warehouse space from Lincoln. LCO and Lincoln amended their lease agreement to lessen the amount of the lease payments and the leased space, and to lengthen the lease. LCO assumed the lease in their bankruptcy. The trustee unsuccessfully attempted to recover pre-petition lease payments for the es...
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ORDER This matter concerns the objection by Patricia G. Kaiser (“Debtor”) to the proof of claim filed on behalf of the United States Internal Revenue Service (“IRS”). The trial was conducted on March 13, 1995. The IRS had previously filed a timely response to the Debtor’s objection. Following the trial, the matter was submitted to the Court on the record as a whole. This is a core proceeding pu...
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OPINION I The bankruptcy court held that a guaranty executed postpetition was invalid under Section 524 of the Bankruptcy Code because it was based on a discharged debt. The creditor appeals from the summary judgment entered against it. We AFFIRM. II FACTS On November 20, 1991, Getzoff Accountancy Corporation (“GAC”) signed a promissory note and obtained a loan from SafraBank Californ...
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AMENDED OPINION I The bankruptcy court held that in determining whether a judgment hen attached to a debtor’s property under California law, the equity in the property should be determined as of the date the debtor filed her bankruptcy petition. The debtor appealed, contending that the equity should have been determined ón the date the abstract of judgment was recorded. We AFFIRM. II FACTS The fa...
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MEMORANDUM-DECISION This matter is before the court upon a motion for summary judgment filed by Lobel Financial Corp. (“Lobel” or “Defendant”). Lobel has separately moved for relief from stay as to a 1989 Dodge Ramcharger, which is the subject of the complaint (C.P. No. 29). A reply affirmation has been submitted by the debtors and memoranda filed by both parties outlining their respectiv...
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MEMORANDUM This matter is before the Court on over seventy motions to reinstate attorneys’ fees, filed pursuant to this Court’s Order disallowing unreasonable attorneys’ fees, dated March 1, 1995. The Daikon Shield Claimants Trust (“Trust”) appears in its role as fiduciary for all Daikon Shield claimants. I. On March 1, 1995, this Court issued an Order Disallowing Unreasonabl...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the Joint Motion to Dismiss Involuntary Bankruptcy filed by Kay Savage, Perry Savage, Swaid Swaid, and Mutual Life Insurance Company of New York (Mutual Life) (collectively “Petitioning Creditors”), George B. Warren, Jr., (Warren Jr.) and George B. Warren, Sr., (Warren Sr.). Present at the March 13, 1995, hearing on the matter we...
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OPINION RE: TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTIONS UNDER 11 U.S.C. § 522(d)(3), (10), and (11) BACKGROUND On February 22, 1995, James J. Williams and Renee L. Williams “Debtors”, filed their voluntary joint petition under chapter 7 of the Bankruptcy Code. 1 In August 1992, debtor James Williams was injured in an accident which arose out of, and was in the ...
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OPINION AND ORDER EXCEPTING DEBTS FROM DISCHARGE This matter is before the Court upon the adversary complaint (the “Complaint”) filed by Charlotte Leslie (“Charlotte”) to except certain of the debts of John M. Leslie (“Debtor”) from discharge under 11 U.S.C. § 523(a). The Court finds that the Complaint is well taken and that the Debtor’s debts owed to Charlotte should be excepted from discharge...
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OPINION RE ORDER TO SHOW CAUSE RE CONTEMPT The issue before this Court is whether a debt owed to an intentionally omitted creditor in a no-asset bankruptcy case may be excepted from discharge under 11 U.S.C. § 523(a)(3) under the doctrine of equitable estoppel. 1 The debtor argues that the Ninth Circuit’s decision in In re Beezley, 994 F.2d 1433 (9th Cir.1993), compels the conclusion that t...
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SUPPLEMENTAL OPINION 1 This matter is before the Court on the debtor’s motion for an order to reinstate its lottery license issued by the State of Michigan Bureau of State Lottery (“Bureau”). It is the debtor’s position that the Bureau’s post-petition suspension of its lottery license with the intent to revoke violated the automatic stay, specifically §§ 362(a)(1) and (3) of the Bankruptc...
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ORDER At Butte in said District this 16th day of February, 1995. In this adversary proceeding, the Debt- or/Defendant Raymond Williams filed consolidated motions seeking to have the Plaintiffs complaint stricken and dismissed for insuffi *256 ciency of service of process, because the summons and complaint were not served upon the Defendant personally as required by F.R.B...
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In this Chapter 7 ease, the trustee has objected to an administrative expense claim of the Internal Revenue Service (“I.R.S.”) of $31,613.01. Debtor, Quid Me Broadcasting, Inc. (“Quid Me”), operated a radio station in Buffalo *717known as “WECK.” In 1989, prior to filing for bankruptcy, Quid Me sold the radio station and its assets. The terms of the sale included a $600,000 unsecured promissory no...
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MEMORANDUM OPINION This matter comes before the Court upon a motion by Kay M. Roberge, the Debtor’s former spouse, for relief from the automatic stay. Mrs. Roberge seeks relief so that a Florida court may apply Florida equitable distribution law in a partition action to establish the Debtor’s interest in the marital home belonging to the Plaintiff and the Debtor as tenants in common. ...
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MEMORANDUM DECISION This matter came on for trial Thursday, February 9, 1995. George Lyle appeared on behalf of the plaintiffs. Robert Branman appeared on behalf of the United States of America (“IRS”). Having heard the testimony, reviewed the exhibits, and considered the arguments of counsel, I find in favor of the IRS. Case Background Several of the issues in this case...
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ORDER This matter comes before the Court on the Motion for Sanctions filed on December 27, 1994, by the defendant Moore-Handley, Inc. (hereinafter “Moore-Handley”). Moore-Handley’s Motion arises in an adversary proceeding commenced by the debtor Leeds Building Products, Inc., (hereinafter “Leeds”) against Moore-Handley to recover allegedly preferential transfers. As such, the matters ...
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OPINION In these four cases, we are called upon to determine whether and to what extent a request for paraprofessional services may be compensated in the context of a Chapter 7 trustee’s application for commission and expenses. In each of the eases, John W. Har-grave, Esq., serves as the Chapter 7 trustee, and has also been appointed counsel for the trustee. The Final Report in each c...
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ORDER This matter is before the Court on an objection to confirmation filed by Huntsville Teachers Credit Union (credit union). The *599 Credit Union objects to the debtors’ plan because it proposes to subclass and pay in full a student loan, which is otherwise unsecured, while paying the general unsecured creditors practically nothing. At the hearing on March 27, 1995, the parties informed t...
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MEMORANDUM AND ORDER ON TRUSTEE’S APPLICATION TO EMPLOY ATTORNEY Richard M. Coan, the Chapter 7 trustee for the bankruptcy estates in these administratively consolidated cases, seeks court approval under 11 U.S.C. § 327 to employ the law firm of Caddell & Conwell of Houston, Texas (“Caddell”) as special counsel for the purposes, and under the conditions, described in the Trustee’s Applica...
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CORRECTED TEXT OF MAY 5, 1995 BENCH RULING ON MOTION TO STAY OBJECTIONS TO CLAIMS 1 I. Terminated by The Leslie Fay Companies, Inc. (the “debtor” or “Leslie Fay”) some two years prior to the filing of its chapter 11 petition, Anthony Gill, Raymond J. Terwilli-ger, and Jacob V. Falbaum all agreed to sign general release agreements, acknowledging that they had certain rights under various s...
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Memorandum Decision On Debtor’s Motion To Stay Mercury Capital Corp. Debtor is an individual whose voluntary petition under chapter 11 of the Bankruptcy Code (the “Code”) lists seven apartment buildings as his principal assets. Mercury Capital Corporation (“Mercury”) claims to be owed in excess of $1 million and may be debtor’s largest creditor. Its claim is secured by a first mortgage on four ...
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DECISION ON INTERNAL REVENUE SERVICE’S MOTION FOR ABSTENTION OR, ALTERNATIVELY, SUMMARY JUDGMENT The Internal Revenue Service (“IRS”) asks me to abstain from hearing this adversary proceeding commenced by Chapter 7 debtor, Eugene D’Alessio, Jr. (“debtor”) to determine his continuing federal tax liability for the years 1979 and 1980. Alternatively, the IRS moves for summary judgment conten...
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DECISION ON INTERNAL REVENUE SERVICE’S MOTION FOR ABSTENTION OR, ALTERNATIVELY, SUMMARY JUDGMENT The Internal Revenue Service (“IRS”) asks me to abstain from hearing this adversary proceeding commenced by Chapter 7 debtors, Anthony and Neiza Stodut to determine their continuing federal tax liability for the years 1985 and 1986. Alternatively, the IRS moves for summary judgment contending ...
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*40 MEMORANDUM OPINION The United States Trustee (the “Trustee”) has moved to dismiss this Chapter 7 case as being a substantial abuse. 11 U.S.C. § 707(b). 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. §§ 1384(b), 157(a), and 157(b)(1). For the reasons set forth below, an Order of Dismissal will be entered unless debtor ...
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MEMORANDUM OPINION Lawrence R. Whyte filed a claim in the amount of $1,200,000 in this Chapter 11 bankruptcy case. Pursuant to Rule 3007 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), debtor filed a written objection to the claim. Debtor did not request that Mr. Whyte’s claim be equitably subordinated, pursuant to Rule 7001 of the Bankruptcy Rules, and section 510(e) of th...
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AMENDED ORDER DENYING DEBTORS’ DISCHARGE Plaintiff, the United States of America, on behalf of its agency, the United States Department of Agriculture, Rural Economic and Community Development Agency, formerly known as Farmers Home Administration, (the “RECD”) filed an adversary action in debtors’ Chapter 7 bankruptcy case objecting to debtors’ discharge and objecting to the discharge...
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MEMORANDUM OPINION Plaintiff Mercantile Bank of Illinois (“plaintiff”) objected to the dischargeability of defendani/debtor’s (“debtor”) credit card debt in the amount of $3,180.89 pursuant to 11 U.S.C. § 523(a)(2)(A). 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 ...
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OPINION Before the Court is the Motion of Chemical Bank For Relief From the Automatic Stay (the “Motion”) in each of the above jointly administered Debtors cases. An Answer in opposition to the Motion has been filed on behalf of the Debtors, Philmont Development Company, Philmont Meadows Ltd. Partnership # 1, Philmont Meadows Ltd. Partnership # 2 and Philmont Meadows Ltd. Partnership # 3 (“th...
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MEMORANDUM OF DECISION Debtors Daniel and Kelly Kinnemore filed for Chapter 7 rehef on January 5, 1995. They have now filed a motion to avoid the hen of Creditor American Property Management, Inc. pursuant to Section 522(f) of the Bankruptcy Code in certain household furnishings and goods (“property”) and also for the return of the property, ah of which items are now in the possession of ...
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MEMORANDUM OF DECISION Debtors’ counsel Bernard Zaleha seeks payment of $396 in attorney fees out of assets of the bankruptcy estate for services he *521 provided to Debtors in connection with this case. Both the Chapter 7 Trustee John Krommenhoek and the U.S. Trustee have objected to this request. 1 The Court conducted a hearing on the application on April 18, 1995. This Memorandum const...
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OPINION PROCEDURAL BACKGROUND This matter comes before this Court on a “Motion to Approve Compromise with Caliber Bank” filed on February 3, 1994 by Robert J. Davis, the Chapter 7 Trustee (hereinafter “the Trustee”). On March 17, 1994, Bank of America, formerly known as Caliber Bank (hereinafter “BA”), filed a “Notice of Supplementing Record” in which BA provided a fully executed...
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ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY, FOR ABANDONMENT OF PROPERTY, OR ALTERNATIVELY SEEKING ADEQUATE PROTECTION BACKGROUND Debtors commenced this case on October 11, 1994, by filing their voluntary petition under Chapter 13 of the Bankruptcy Code. 1 In their original Chapter 13 plan, filed with their petition, debtors proposed to make 36 monthly plan payments of $700, and to mak...
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MEMORANDUM OF DECISION The debtor has moved to modify her confirmed Chapter 13 Plan. Lomas Mortgage has moved for relief from the section 362 automatic stay. The motions raise the issue of modification of a chapter 13 plan to include payment of arrearages in the original plan payments. BACKGROUND Debbie Bellinger (the “debtor”) filed a petition for relief under Chapter 13 of...
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ORDER GRANTING BANKRUPTCY ADMINISTRATOR’S MOTION TO DISMISS CASE PURSUANT TO SECTION 707(b) This matter came before the undersigned United States Bankruptcy Judge on March 22, 1995 upon the Motion by Bankruptcy Administrator to Dismiss Case Pursuant to Section 707(b). After hearing and considering the testimony of Ellis Parker Jarrell, Jr. and Bonnie Faye Jarrell and the presenta...
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OPINION GRANTING DEBTORS’ MOTION FOR SUMMARY JUDGMENT REGARDING DEBTORS’ OBJECTION TO CLAIM OF NORTHWEST PLAZA AND DENYING IN PART AND GRANTING IN PART DEBTORS’ MOTION FOR SUMMARY JUDGMENT REGARDING DEBTORS’ OBJECTION TO CLAIM OF EQUITABLE LIFE ASSURANCE SOCIETY I. Introduction At issue in this case is the amount of lease rejection damages recoverable by Northwest Plaza Associates (“...
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MEMORANDUM OF DECISION At issue is the debtor’s motion for turnover of funds and Ford Motor Credit Company’s motion for vacation of an order disallowing its claim. FACTUAL BACKGROUND William I. Moore and Patty A. Moore (the “debtors”) filed their petition for relief under Chapter 13 of Title 11 of the United States Code on March 26, 1993. In Schedule D, the debtors list...
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MEMORANDUM OPINION AND ORDER The matter before the court is the supplemental motion to dismiss filed by the Texas Department of Transportation (DOT), the defendant in this adversary proceeding. A hearing was held, with DOT’s attorney appearing by telephone conference call, on January 10, 1995, in Raleigh, North Carolina. DOT’s motion will be denied. This adversary proceeding institut...
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ORDER Redpath Computer Services is one of two debtors in possession in a jointly administered Chapter 11 case. At issue is whether a licensee’s termination of debtor’s services under an executory agreement involved an “at will” contract or instead was a void action taken in violation of the automatic stay. 11 U.S.C. § 362(a)(3). This Court concludes the latter occurred, given the contract’s ter...
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ORDER DENYING DEFENDANT’S MOTION FOR DISMISSAL AND GRANTING IN PART DEFENDANT’S MOTION FOR ABSTENTION In this adversary proceeding the Plaintiff, Peter D. Fyfe, seeks a determination of the following: (1) the amount of his federal income tax liability for the years 1983 through 1985; (2) that his debt for federal income taxes for the years 1983 through 1985 is dischargeable in his bankruptcy ...
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OPINION A INTRODUCTION Presently before this court in the voluntary Chapter 11 bankruptcy case of SACRED HEART HOSPITAL OF NORRIS-TOWN, d/b/a SACRED HEART HOSPITAL AND REHABILITATION CENTER (“the Debtor”) is the Debtor’s request that we confirm its Amended Plan of Reorganization (“the Plan”) over several objections (“the Objections”) raised by one of its creditors, ALLMED FIN...
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MEMORANDUM OPINION The controlling issue before the court is what are the duties of a debtor-in-possession whose only asset is a lawsuit and who is faced with an offer of judgment that is enough to pay creditors, but which the Debt- or considers to be inadequate. PROCEDURAL HISTORY Anna Wade Bowman, Debtor, filed her voluntary Chapter 7 petition on April 23, 1...
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FINDINGS AND CONCLUSIONS At the conclusion of the trial in this case, I dictated findings of fact and conclusions of law into the record in conjunction with announcing the framework of a decree. I here supplement those findings and conclusions, and I also reverse a ruling with respect to the corporate opportunity aspect of the case. The defendant Demetrios B. Haseotes (“Haseotes”...
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MEMORANDUM DECISION GRANTING MOTION TO DISMISS THE CASE AND DENYING THE DEBTORS’ MOTION FOR ALTERNATIVE RELIEF The Office of the United States Trustee (the “Trustee”) moves to convert, or in the alternative, dismiss this joint Chapter 11 case, which the debtors have done little to prosecute since they filed their petition in January, 1994. The debtors counter that their Chapter 11 case is...
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MEMORANDUM DECISION DISMISSING THE PLAINTIFF’S COMPLAINT The plaintiff, Colonial National Bank, USA (“Colonial”) filed this adversary proceeding objecting to the dischargeability of the defendant’s credit card debt in the approximate sum of $4,100.00. Colonial initially sought a determination of non-dischargeability under 11 U.S.C. § 523(a)(2)(A), § 523(a)(2)(B) and § 523(a)(2)(C), but withdrew...
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ORDER This matter is before the Court on a motion for summary judgment filed by defendant United States of America, on behalf of the Internal Revenue Service (the “IRS”). Debtor Hanne Marie Schibilsky filed this adversary proceeding against the United States objecting to the proof of claim filed by the IRS in debtor’s Chapter 13 case. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2...
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MEMORANDUM OPINION This matter is before the Court on the Motion for Summary Judgment filed by defendant Automotive Finance Corporation (“AFC”) and the Cross-Motion for Summary Judgment filed by the plaintiff. AFC filed its Motion on January 31,1995. The plaintiff filed a Response to AFC’s Motion on February 14, 1995, and AFC filed a Reply to the plaintiff’s Response on February 22, 1995. The pl...
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ORDER GRANTING DEBTORS’ MOTION FOR LIEN AVOIDANCE, IN PART, AND OVERRULING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION, IN PART This Chapter 7 case came on before the Court for hearing on the Debtors’ motion for hen avoidance. The Debtors appeared personally and by their attorney, Perry A. Berg. Chapter 7 Trustee Mark C. Halverson appeared for the bankruptcy estate. Upon the moving...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT This adversary proceeding for determination of dischargeability of debt came on before the Court on November 23, 1994, for trial. The Plaintiff appeared by its attorney, Kenneth Hertz. The Defendant appeared personally and by his attorney, Stephen P. Thies. Upon the evidence adduced at trial, and the memoranda and arguments subm...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION TO NOTICE OF SALE I. INTRODUCTION This contested matter presents a dispute between the Debtors and their Chapter 7 Trustee over control of the shares of stock of a real estate holding corporation. The Debtors have objected to their Chapter 7 trustee’s proposed private sale of these shares of stock upon several alternative grounds, includi...
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ORDER GRANTING DEBTORS’ MOTION TO SET ASIDE TRUSTEE’S SALE This matter is before the Court pursuant to the Debtors’ Motion to Set Aside Trustee’s Sale and Fleet Mortgage Corporation’s response thereto. A hearing was held March 24,1995. The Court directed the Chapter 13 Trustee to meet with the Debtors and supplement his response within 15 days. The Chapter 13 Trustee filed his Supplementa...
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MEMORANDUM OPINION The court has considered the Verified Emergency Motion for Order Finding Probable Insufficiency of Funds to Pay Administrative Expenses, or to Authorize Sale of Wainoco Stock to Pay Estimated Quarterly Taxes of the Estate (Docket No. 135) filed by Debtor. The following are the Findings of Fact and Conclusions of Law of the court. To the extent any of the Findings of Fact may b...
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MEMORANDUM OPINION The court has heard the Motion to Dismiss Simultaneous Bankruptcy Case for Bad Faith Filing (Docket No. 6), filed by Michael D. Lesem and Keith Jordan. After reviewing the pleadings and considering the evidence, the court makes the following Findings of Fact and Conclusions of Law. A separate conforming Judgment will be entered, dismissing the case. To the extent any of the...
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*899 MEMORANDUM OPINION The court has considered the Joint Motion to Compromise Controversy Pursuant to Bankruptcy Rule 9019 and Local Bankruptcy Rule 7041(a) filed by General Homes Corporation (“GHC”), FGMC, Inc. (“FGMC”), American Savings of Florida, F.S.B., successor to American Savings and Loan Association of Florida (“American”), Citicorp Real Estate, Inc. (“CREI”), Bank...
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MEMORANDUM OPINION The court has considered the Joint Motion of NationsBank of Texas, N.A., and the Chapter 11 Trustee for (i) Reconsideration of Order Denying First Claims Allowance Motion Without Prejudice and (ii) Approval of Revised Sharing Agreement as Compromise and Settlement Agreement under Rule 9019 (Docket No. 677) (“Compromise Motion”), and the Motion to Convert Case to Cha...
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DECISION DISMISSING “VOLUNTARY” CASE FOR LACK OF JURISDICTION This so-called “voluntary” Chapter 13 case was filed on April 4, 1995. First mortgagee, Security Pacific National Bank, moves to annul the automatic stay and ratify its post-petition foreclosure sale. The Chapter 18 trustee moves to dismiss the case for failure to file a plan. During the preliminary hearing, the purported ...
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OPINION Introduction. Max Berger (“Berger”) and Irving Tannenbaum (“I. Tannenbaum”), sometimes collectively referred to herein as the “Plan Proponents,” are before the Court seeking confirmation under Bankruptcy Code Section 1129(b) of their Modified Second Amended Plan of Reorganization (the “Plan”) for the above Chapter 11 debtor, Eddington Thread Manufacturing Co., Inc., (...
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DECISION ON GMAC’S MOTIONS TO REQUIRE DEBTORS TO ASSUME OR REJECT EXECUTORY CONTRACT AND FOR RECONSIDERATION Section 365(a) of the Bankruptcy Code 1 provides: “the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” The question here presented is whether the agreement to finance debtors’ car, which includes a ...
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MEMORANDUM OPINION This matter comes before the Court on Motion To Allow Late Filed Claim by Mr. Amos Odom. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(B). For the following reasons, the Court will deny Mr. Odom’s motion. These findings of fact and conclusions of law are entered in compliance with Fed.R.Bankr.P. 7052. FINDINGS OF FACT The facts of this ease are not in disput...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY AND ON DEBTOR’S MOTION TO AMEND SCHEDULES This proceeding is before the Court on the complaint filed by Margaret Lucchesi, individually and as administrator of the estate of her deceased husband Louis Lucchesi, who was a brother of the defendant/debtor Vincent A. Lucchesi. The complaint seeks a determination that loans made by...
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*419 MEMORANDUM Before the court is the Motion for Relief From the Automatic Stay by the First Nebraska Bank of Stanton, Nebraska, (the “Bank”), and the Resistance by the debtor. This ease involves successive bankruptcy filings, and the automatic stay is lifted. FINDINGS OF FACT The debtor previously filed Chapter 12 bankruptcy in Nebraska on July 30, 1992 (BK92-81355). This predecessor case was...
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MEMORANDUM OPINION This matter comes before the Court on Motion to Determine the Value of Security and Motion to Avoid Judicial Lien filed by Robert and Sheila Thomsen (“Debtors”). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(K). Based on the evidence presented at the hearing on February 6,1995, the Court will grant Debtors’ motion and avoid this judicial lien. ...
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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)(8) 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 Taxation”) for, inter alia, amounts ...
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ORDER SUSTAINING OBJECTION TO EXEMPTION This case 1 came on for hearing on the Objection to Exemptions (the “Objection”) filed by the United States Trustee. The Objection relates to the claim of the individual debtors, Glenn and Christine Dietel (the “Debtors”), to exempt certain property. After reviewing the pleadings, considering the arguments of counsel and applicable la...
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ORDER On the 19th day of April, 1995, the above-referenced adversary proceeding came on for trial in Durant, Oklahoma. Counsel appearing were Susan Mixon for the Plaintiff and Tom Webb for the Defendant. After a review of the above-referenced pleadings, testimony presented and arguments of counsel, this Court does hereby enter the following findings and conclusions in conformity with Rule 7...
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MEMORANDUM OPINION-OBJECTION TO CASH COLLATERAL ORDER This matter comes before the court upon the United States Trustee’s (“Trustee”) Objection to the Interim Cash Collateral Order (“Order”) entered on February 24, 1995. The Order contains, among other things, an agreement between Bino’s, Inc. (“Debtor”), and the Illinois Department of Revenue (“IDR”) and the Internal Revenue Service ...
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MEMORANDUM OPINION AND ORDER This matter is before the Court pursuant to Application for Compensation and Reimbursement of Expenses fled on behalf of a secured creditor, Empire of America Realty (“Creditor”). The sole issue before the Court is whether the fees should be awarded under 11 U.S.C. § 506(b) where there is no equity in the property and whether the denial of such fees impermissibly modi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This adversary proceeding came on for final evidentiary hearing on the Complaint to Determine Dischargeability of a Debt (“Complaint”) filed by Andrea Chisari (“Debtor”) against the Florida Department of Education (“Defendant”). In filing the Complaint, the Debtor seeks a determination that cert...
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MEMORANDUM OPINION AND ORDER This matter was before the Court pursuant to Cross-Motions to Reconsider the Judgment Order entered November 3, 1994 whereby the Court held that the remaining unpaid debt to Benjamin Medley in the amount of $20,685.52 plus interest as provided by law from date thereof as being non-dischargeable, pursuant to 11 U.S.C. § 523(a)(2)(A). For the reasons set forth b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case presents the oft-seen situation in which the parties, formerly married to each other, dispute whether certain payments under a property settlement agreement are dischargeable in bankruptcy. The facts of this case are particularly difficult to determine because neither party presented a demeanor consistent with truthfulness. The testimo...
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MEMORANDUM OPINION ON MOTION OF DEFENDANT TRANSAMERICA (TIFCO) FOR SUMMARY JUDGMENT This Adversary proceeding relates to bankruptcy cases filed by Schwinn Bicycle Co. and various related entities (collectively “Debtor” or “Schwinn”) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Its liquidating Plan was confirmed. On October 3, 1994, Plaintiff Schwinn Plan...
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MEMORANDUM DECISION ON DEFENDANT’S MOTION PURSUANT TO FED.R.CIV.P. 12(b)(6) TO DISMISS COMPLAINT Peerless Insurance Company (“Peerless” or “plaintiff’) is a judgment creditor of James M. Casey (“debtor” or “defendant”) in the principal sum of approximately $140,-000.00. Peerless commenced this adversary proceeding to obtain a judgment excepting that indebtedness from discharge pursuan...
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AMENDED MEMORANDUM OF DECISION This adversary proceeding arises from the failure of a Chapter 11 trustee to pay state taxes that he eohected from customers of a hotel and restaurant business owned by the debtors. In a prior adversary proceeding, this court ruled that the unpaid taxes did not constitute a trust fund held for the benefit of the state. State of Illinois v. Steege (In r...
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ORDER DENYING MOTION TO REOPEN ESTATE THIS CAUSE is before the Court upon the creditor’s “Motion to Reopen Es-*385tate” filed on May 2, 1995. The creditor Sherree Gnau, the ex-spouse of the debtor, seeks to have the case reopened in order that it may be dismissed for bad faith.1 Specifically, Gnau asserts that the case was filed solely to frustrate her efforts regarding court-ordered support for...
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OPINION AND ORDER This “Motion”, pursuant to 11 U.S.C. § 506, is being treated as an adversary proceeding under Federal Rule of Bankruptcy Procedure 7001. John T. Griffin and Melody S. Griffin, Debtors herein, have filed this litigation in order to determine the security interests of Falcon Oil Company, Inc. (“Falcon”) and First Eastern Bank n/k/a PNC Bank (“Bank”), both of whom claim a securit...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon the debtor plaintiffs Motion for Summary Judgment, filed on April 14, 1995, to which the defendant has failed to respond.1 The debtor reopened his bankruptcy case to file this adversary proceeding which requests that the Court find a debt be declared discharged. The creditor defends this suit on the grounds that the de...
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OPINION AND ORDER Before this court are the consolidated matters of a Motion for Relief from the Automatic Stay filed by Western Pocono Estates, Inc., the Objection to the Chapter 13 Plan of the Debtor by Western Pocono Estates, Inc., and the Complaint of the Debtor, Gregory B. Miskowski, for Declaratory Judgment. On June 12, 1984, the Debtor and his non-debtor spouse, Agnes N. Miskowski, enter...
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ORDER THIS CAUSE came before the Court upon the trial in the adversary proceeding, Schief-fler v. Beshears, AP NO. 94-1047, as well as objections to exemptions claimed by the debtor Nancy Beshears, now named Nancy King. 1 The contested matters were tried with the adversary proceeding upon the request of the parties inasmuch as the same facts and law are at issue in both proceedings. The ...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND ORDER SETTING HEARING This case presents the quintessential circumstance for which the doctrine of res judi-cata was formulated. The plaintiff previously was party to an action filed in the United States District Court for the Western District of Arkansas in which the parties sought a determination as to lien priority on certain property. The district...
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ORDER THIS CAUSE is before the Court upon the Objection to Confirmation of Plan, filed on March 3, 1995, and the Motion for Relief from Stay filed on March 6, 1995. Both of these contested matters were filed by the Rural Economic and Community Development Services (“RECD”), which holds claims secured by the debtor’s residence. 1 The RECD objects to the plan provisions and asks for relief fr...
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OPINION This appeal arises from a complaint seeking to have the debtors’ discharge denied based on alleged fraudulent conduct by the debtors. The bankruptcy court ruled in favor of the debtors and granted the debtors a discharge. 1 The appellants, Philip A. DeMassa and his professional corporation (“DeMassa”) moved to file an oversize brief exceeding the normal page limits set forth in BA...
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MEMORANDUM OPINION AND ORDER This adversary proceeding was submitted for decision on stipulations and briefs. Upon *550 consideration thereof, and of the record herein, this Court, pursuant to F.R.B.P. 7052, finds, concludes and orders as follows. Procedural history of the matter is included in “Findings of Fact.” FINDINGS OF FACT On June 27, 1993, Ruben E. Innis, III (“Innis”) was in...
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OPINION I The bankruptcy court held that a state agency’s claim for reimbursement of workers’ compensation benefits paid to the debt- or’s employee was nondischargeable as an excise tax. We REVERSE. II FACTS Karen Camilli (“Camilli”) owned a janitorial business in Arizona called Final Touch. Arizona law required Camilli to provide workers’ compensation benefits for her employees, using either Stat...
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OPINION I The bankruptcy court confirmed the plan of appellee, West Coast Land Fund, L.P. (“West Coast”), a secured creditor. Pursuant to the plan West Coast obtained the property of the debtor, Vista Del Mar Associates, Inc. (“Debtor”), by credit bidding at an auction held immediately following the hearing on confirmation. The Debtor appeals the orders confirming the plan and approv...
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OPINION This appeal arises from the partial granting of a motion for summary judgment declaring a state court judgment for legal malpractice to be nondischargeable pursuant to § 523(a)(6) 1 . The debtor appeals. We REVERSE and REMAND. I. FACTS 2 The appellee, Chris Okoye (“Okoye”) was terminated from his employment as a senior accountant in Los Angeles, Ca...
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OPINION RE: DEBTOR’S OBJECTION TO ALLOWANCE OF CLAIM OF STEPHEN W. AND LANA G. PEARSON This matter comes before the court on the debtor in possession’s objection to the claim of Stephen W. and Lana G. Pearson (“Pear-sons” or “claimants”). The Pearsons filed their timely claim in the amount of $292,-904.00 as unsecured creditors. The debtor, First Actuarial Corporation of Illinois, (“First Actuaria...
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MEMORANDUM OPINION At issue is whether the defendant, the Board of Trustees of the Fairfax County Police Officers Retirement System (the “Board”), may withhold retirement benefits payable to the debtor, William Reid Thompson, notwithstanding the automatic stay and the discharge injunction. Since 1987, the Board has been withholding benefits from Thompson in order to recover overpaymen...
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MEMORANDUM OPINION This matter is before the Court on Cross-Motions for Summary Judgment filed herein by the trustee and the defendants. The parties having submitted briefs and an Agreed Stipulation of Facts, an Order Submitting Upon the Record was entered on April 17, 1995. This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b); it is a core proceeding pursuant to...
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DECISION AND ORDER The matter for decision by the court arises as a result of the objection by the Chapter 7 trustee to the debtors’ claim of homestead exemptions and poor debtor exemptions under Code of Virginia § 34-4 and § 34 — 26. The parties have submitted the case to the court for decision on stipulated facts. Facts The stipulation of facts shows that on the date the debtors filed t...
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MEMORANDUM OPINION AND ORDER ON THE MOTION OF AMERICAN GENERAL FINANCE, INC. TO DISMISS OR TRANSFER CASE FOR IMPROPER VENUE This Chapter 7 case is before the Court on the motion of American General Finance, Inc. to dismiss or transfer the case “on grounds that the debtors reside in Horn Lake, Mississippi” and that the venue of this case in this district is improper. The debtors oppose the motio...
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OPINION Introduction. Before the Court are motions of Jerome Golub, Arlene Golub and Janet Steinberg (the “Individual Defendants”) in the above adversary action seeking dismissal of the *111 Plaintiff/Debtor’s complaint for damages and equitable relief, or in the alternative, to have the Court either abstain from hearing the matter, or transfer venue to the District Court for the Distri...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the motion for summary judgment filed by Maria Alice Brandenberger a/k/a Maya Branden-berger in this adversary proceeding. Bran-denberger contends that the debtor, Richard C. Chinnery, is collaterally estopped from contesting the nondischargeability of a debt under 11 U.S.C. § 523(a)(2)(A). For the fo...
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ORDER GRANTING UNITED STATES OF AMERICA’S “MOTION TO ALTER OR AMEND COURT’S JUNE 2, 1994 ORDER OF INSTRUCTION” AND DENYING DEBTOR’S REQUEST FOR SANCTIONS On June 13, 1994, the United States of America ex rel. Internal Revenue Service *705 (“IRS”) filed its “Motion to Alter or Amend Court’s June 2, 1994 Order of Instruction.” This matter was eventually taken under adviseme...
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OPINION Before the Court is the Debtor’s First Amended Complaint for Conversion of Personal Property and Violation of the Unfair Trade Practices and Consumer Protection Law (the “Complaint”). The Debtor seeks to hold Superior Moving & Storage, Inc. (“Superior”) liable for the value of personal property which Superior moved from the Debtor’s apartment, stored pursuant to a contract wit...
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MEMORANDUM OPINION This matter came before the Court on plaintiffs’ complaints to determine discharge-ability pursuant to 11 U.S.C. § 727(a), and, in the case of Antonia Neumann, § 523(a)(2)(A), (a)(5) and (a)(6) and to determine whether defendant-debtor converted certain property owned by plaintiff, Antonia Neumann. JURISDICTION This proceeding arises in a ease referred to this Court by the ...
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MEMORANDUM OPINION This matter comes before the Court on Objection to Confirmation by Bank of Upson, *1019 (the “Bank”), a creditor in this ease. Tommy Felker and Kathy Felker (collectively the “Debtors”) have also objected to the claim asserted by the Bank. At issue is the Bank’s secured status under a so-called “dragnet clause” contained in a deed to secure debt. This i...
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MEMORANDUM OPINION This Motion For Relief From Stay was filed by First Tennessee Bank National Association (the “Bank”). This is a core matter as defined by 28 U.S.C. § 157(b)(2)(G). For the reasons set out in this memorandum opinion, the Court will grant the Bank’s motion. These findings of fact and conclusions of law are entered in compliance with Fed. R.Bankr.P. 7052. FINDINGS OF FACT ...
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*377 MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION TO DISMISS COUNTERCLAIM I. Byron Paul Yost (Yost), as successor trustee in thirteen Chapter 7 eases and also in the name of the United States of America (together, the plaintiffs), brought a complaint against Thomas M. Germain (Germain), the prior trustee in each of the thirteen cases, and against Seaboard Security Company (Seaboard), a company ...
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MEMORANDUM OF DECISION I. INTRODUCTION Before the Court for determination is a “Motion to Require Debtor to Surrender Possession of Plaistow, New Hampshire Real Property and to Perform Lease Obligations” (the “Motion”) filed by Hampshire Realty Trust (“HRT”) against Sanborn, Inc. (the “Debtor” or “Sanborn”). Through its Motion, HRT seeks orders (1) compelling the Debtor t...
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MEMORANDUM DECISION INTRODUCTION On January 21, 1994 the debtors filed a Chapter 7 bankruptcy petition. Thereafter, the debtors brought this motion to avoid judicial hens pursuant to 11 U.S.C. § 522(f)(1). 1 One of the henholders, Bradford Baugh, contested the motion. The fair market value of the subject property, known as 345 Leavesley Road, Gilroy, California is disputed...
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MEMORANDUM OPINION Under California state law, certain government entities may choose to deposit, or are required to deposit, their excess funds into the county treasury. The county treasurer may then invest these funds in a variety of securities. Acting pursuant to these statutes, the Orange County Treasurer, Robert L. Citron (the “Treasurer”), combined the funds he received from various...
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MEMORANDUM OPINION This case came before the court on February 8, 1995, for hearing on confirmation of the Debtor’s plan or reorganization. The principal creditors of the Debtor, Gene S. Holbrooks and Anne M. Holbrooks, who hold both secured and unsecured claims, voted against the plan and also filed an objection to confirmation of the plan. The only matter related to confirmation which was hea...
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South Shore Golf Club Holding Co., Inc., as debtor-in-possession, has moved for the appointment of Eugene G. Colello as special accountant for the Debtor. The Office of the United States Trustee objects on the ground that the proposed accountant is not a disinterested person under 11 U.S.C. § 327(a). For the reasons set forth herein, this objection is sustained and the motion for appointment is de...
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ORDER GRANTING MOTION FOR RELIEF FROM AUTOMATIC STAY FILED BY THE MISSOURI DEPARTMENT OF AGRICULTURE This matter is before the Court on the motion for expedited hearing pursuant to 11 U.S.C. § 557 and motion for relief from the automatic stay filed by the Missouri Department of Agriculture (Department). A hearing was held on April 19,1995. After considering the arguments of counsel, reading the...
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ORDER On May 17, 1993, Bancroft Cap Company (Debtor) filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. Bower and Bonanno Co. (Bonanno) was listed in schedule F as a creditor holding an unsecured nonpriority claim of $10,500.00. On October 13, 1993, Bonanno filed claim No. 77 as a general unsecured claim for $55,765.00. On December...
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ORDER DENYING MOTION TO DISMISS On April 19, 1995, plaintiff Household Credit Services, Inc. (“HCS”) filed its complaint commencing this adversary proceeding against defendant Marcea Allaine Peterson (“Peterson”). In its complaint, HCS seeks an exception to discharge under 11 U.S.C. § 523(a)(2)(A) for a debt of $8,343.45 in credit card charges. The complaint asserts and alleges that w...
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ORDER GRANTING IN PART APPLICATION FOR ATTORNEY’S FEES AND INCREASING AMOUNT OF ALLOWED SECURED CLAIM On October 18, 1994, the Debtor filed a voluntary petition seeking relief under Chapter 13 of the Bankruptcy Code, and at the same time filed her Chapter 13 Plan, Statement of Affairs and Schedules. The Debtor is a single mother, raising her son, age 17, and another son, age 8. The Debtor nets $...
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*585 ORDER DENYING OBJECTIONS TO PLAN (RESERVING ISSUES CONCERNING ATTORNEY FEE) This contested matter was submitted for decision on stipulations and briefs. Upon consideration thereof, and of the record herein, this Court, pursuant to F.R.B.P. 7052 and 9014, finds, concludes, and orders as follows. Procedural history of the matter is included among “Findings of Fact.” FINDINGS OF FACT ...
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MEMORANDUM DECISION GRANTING RELIEF FROM THE STAY, CONVERTING THE CASE AND AWARDING SANCTIONS Charles D. Eatman filed this chapter 13 petition on April 13, 1995. This constitutes the fifth aggregate filing by the debtor and his wife who jointly own a condominium apartment (the “Apartment”) in New York, New York. In each instance, they filed their case on the figurative eve or literal day ...
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DECISION In his complaint in this adversary proceeding, the plaintiff debtor, Robert E. Spain, asked that his indebtedness to the United States for federal wagering taxes and related special occupation taxes on wagering be declared dischargeable by reason of § 523(a)(1)(C) of the Bankruptcy Code. 1 The United States disputes the debtor’s position regarding § 523(a)(1)(C) an...
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MEMORANDUM DECISION ON ORE TENUS MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 7056 THIS CAUSE came before the Court on March 8,1995, to consider the Trustee’s complaint seeking subordination of the administrative claim of the United States of America (“IRS”). At the hearing, the parties represented that there were no facts in dispute. Furthermore, the parties agreed that the question ...
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MEMORANDUM This case is before the court on the motion of Pollack and Adele Boyd (a) to determine whether a revocation of the debtor corporation’s Subehapter S tax status by its sole shareholder, Pollack Boyd, would violate the order of confirmation heretofore entered in this case and (b) to declare that any taxes incurred by reason of the sale of the debtor’s assets in this ease fall on the deb...
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MEMORANDUM OPINION ON MOTION OF TI REYNOLDS 531 LIMITED TO DISMISS FOR LACK OF PERSONAL JURISDICTION This Adversary proceeding relates to bankruptcy cases filed by Schwinn Bicycle Co. and various related entities (collectively “Debtor” or “Schwinn”) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Its liquidating Plan was confirmed. On October 3, 1994, as pe...
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MEMORANDUM OF DECISION ON TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTION Trustee’s objection to Debtor’s claim of an exemption in homestead proceeds presents1 an issue of first impression in this District. We must determine whether Debtor may claim as exempt a $20,000 note secured by a mortgage on Debtor’s former homestead in another state. The note represents her share of the proceeds of the former ho...
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OPINION A INTRODUCTION Presently before this court are two issues which the District Court remanded to this court among the many issues and appeals considered in three separate District Court Memoranda and Orders, reported as 1995 WL 113110 (E.D.Pa. March 16, 1995) (“Maz-zocone III”); 180 B.R. 782 (E.D.Pa.1995) (“Mazzocone II ”); and 1995 WL 80090 (E.D.P...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the Court on the motion of Clifford Brandt (“Brandt”) for summary judgment as to Count I of the Trustee’s amended complaint. By the motion, Brandt raises the sole argument that the Trustee’s action was commenced after the expiration of the applicable statute of limitations. 1 This is a core proceeding and...
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*603 MEMORANDUM DECISION AND ORDER GRANTING TOBIN’S MOTION FOR SUMMARY JUDGMENT, DENYING DEBTOR’S CROSS MOTION FOR SUMMARY JUDGMENT AND DENYING DISCHARGE OF DEBTOR THIS CAUSE came on to be heard on May 4, 1995 upon Plaintiff Gerald J. Tobin’s Motion For Summary Judgment and Debt- or’s Cross Motion For Summary Judgment. The Court having reviewed the motions and having examined...
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MEMORANDUM DECISION SUSTAINING DEBTOR’S OBJECTION TO CLAIM FILED BY SOUTHERN MAR-KEY, INC. d/bla SUNKISSED POOLS THIS CAUSE came on before the Court on April 12, 1995 for an evidentiary hearing on the Debtor’s objection to the proof of claim filed by Southern Markey, Inc. d/b/a Sunkissed Pools, and upon the Claimant’s response thereto, and the Court having observed the candor and demeanor of ...
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MEMORANDUM OF DECISION Submitted for decision on a stipulated record is the question whether the debtor’s one-third beneficial interest in the JRS Realty Trust of Maine (“the Trust”) is excluded from his bankruptcy estate under § 541(c)(2) of the Code. For the reasons set forth below, I conclude that the interest is within the estate because the Trust’s transfer restrictions are not e...
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*591 MEMORANDUM DECISION GRANTING MOTION FOR SUMMARY JUDGMENT OF TRALINS AND RICHMAN THIS MATTER came before the Court for a hearing on March 8, 1995, on the Motion for Summary Judgment of Tralins and Rich-man, dated February 17, 1995. By its motion, Tralins and Riehman, now known as Tralins and Associates, a Florida professional association (“Tralins”), seeks the entry of summary judgment in i...
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MEMORANDUM ORDER SETTING EFFECTIVE DATE OF LEASE REJECTION The above-entitled matter came on for hearing before the undersigned on the 24th day of May, 1995 on a motion by the debtor 1 Potato 2, Inc. (“Debtor”) for an order approving the rejection of a lease with Cadillac Fairview Shopping Center Properties (Dela*541ware), Ine. (“Cadillac”). Appearances were as follows: William Kampf and Elizab...
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ORDER DENYING HENRY WEITZ-MAN’S MOTION TO DISMISS FOR INSUFFICIENCY OF SERVICE, OR, IN THE ALTERNATIVE, TO QUASH SERVICE OF PROCESS THIS MATTER came before the Court on April 25, 1995 on Defendant Henry Weitz-man’s Motion to Dismiss for Insufficiency of Service of Process, or, in the alternative, Motion to Quash Service of Process, and the Court having reviewed the file, having heard arguments ...
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*612 MEMORANDUM OPINION Under California state law, certain governmental entities may deposit, or are required to deposit, excess funds into the county treasury. The county treasurer, in turn, is authorized to invest the funds in a variety of securities. Acting pursuant to this statutory authority, the Orange County Treasurer, Robert L. Citron (the “Treasurer”), commingled the fu...
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MEMORANDUM AND ORDER ON TRUSTEES’ OBJECTIONS TO EXEMPTIONS Effective October 1, 1993, the Connecticut General Assembly amended the state’s exemption laws to provide for the first time a homestead exemption in the amount of $75,-000.00. For the reasons that follow, I conclude that that exemption applies only to claims arising on or after the effective date of that amendment. BACKGROUN...
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DECISION ON TEXACO’S MOTION TO REOPEN ITS CHAPTER 11 CASE AND TO ENFORCE THE CONFIRMATION ORDER Texaco Inc., Texaco Capital Inc. and Texaco Capital, N.V. (“Texaco”) seek to reopen the largest bankruptcy case in history in order to enforce the Confirmation Order against twenty individual land owners (“Respondents”) and their attorneys engaged in litigation with Texaco in an action pend...
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ORDER This matter comes before the court for a confirmation hearing on the Debtor’s Second Amended Plan. Timely objections to confirmation were made by Federal Financial Company (Federal Financial), NationsBank, and Parts Industries Corporation (Parts Industries). Testimony at the hearing in this matter on March 27, 1995 was given by Mr. John Camp, President of the Debtor, and by James C. H...
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MEMORANDUM OPINION Came before the Court the cross motions for summary judgment of the Plaintiff and Defendant. Counsel for the parties appeared at a hearing and presented arguments. The Court allowed the parties to submit additional briefs and allowed the Plaintiff to file a supplemental affidavit. The Court finds it has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 & 1...
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ORDER This matter comes before the Court on the Motion of Chapter 7 Debtor to Reopen Case and Motion for Enforcement of Settlement Agreement, and the Motion of Chapter 7 Debtor to Quash Subpoena, all filed in this case on January 26, 1995, by Thomas Arthur Hanks (hereinafter “Debtor”). By these Motions, the Debtor seeks to reopen his dismissed Chapter 7 case in order to enforce a sett...
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MEMORANDUM OPINION Came before the Court on January 25 and February 8, 1995, cross motions for summary judgment filed by the Plaintiff and Defendant Vearl Sneed. Prior to the hearing on the cross motions, however, Sneed filed a Motion to Strike the Plaintiffs Motion for Summary Judgment and the Plaintiffs Response to Defendant’s Motion for Summary Judgment. The basis for the Motion to...
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MEMORANDUM In this chapter 13 case, Ken D. Keaton and •wife, Tonya J. Keaton (“Debtors”) have filed an objection to the claim of Boatmen’s Bank of Tennessee (“Boatmen’s”) to the extent that Boatmen’s seeks to include in its claim attorney’s fees in the amount of $250.00 for representation in the bankruptcy court. For the reasons hereinafter stated, the objection will be overruled and ...
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MEMORANDUM This adversary proceeding was initiated by the filing of a complaint in the Circuit Court for Hamilton County, Tennessee, by Dixstar, Incorporated (“Dixstar”) for unpaid sums due pursuant to certain enumerated purchase agreements. The defendant, Chemtex International, Inc. (“Chemtex”), removed the case to the United States District Court for the Eastern District of Tennessee, S...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Jack McCullough, the Chapter 13 Standing Trustee (the “Trustee”), to direct funds to the Debtor. For the reasons set forth herein, the Court hereby grants the motion and, pursuant to 11 U.S.C. § 1326(a)(2), orders the Trustee to return to the Debtor the sum of $23,900.00. The Illinois Department of Revenue, however...
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The examiner for Patton’s Busy Bee Disposal Service, Inc., commenced this adversary proceeding to recover various insurance premiums that the debtor paid to Robert A. Sweeney Agency, Inc. These payments allegedly included unauthorized postpetition advances on account of prepetition obligations, payments for the benefit of parties other than the debtor, prepetition preferences, and overpayments ...
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MEMORANDUM OPINION 1 Lorraine Hiday (“Hiday”) filed a proof of claim for damages that arose when debtor rejected her employment contract postpetition. The question 2 is whether the claim falls within 11 U.S.C. § 502(b)(7), which limits such claims to one year’s compensation *279 under the contract, in this case $42,000.00 according to the parties’ st...
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OPINION AND ORDER Before the court is an Affidavit (docket No. 105) filed by debtor Vinicio Medrano Diaz wherein it is alleged that the undersigned has a relationship with particular parties in this action and, as a result, recusal is warranted in order that debtor’s due process rights “to have an impartial Judge” are not violated. 1 Debtor asserts that partiality results b...
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MEMORANDUM OF DECISION RE MOTION FOR AN ORDER CERTIFYING CLASS UNDER RULE 23(b)(1)(B) This memorandum constitutes the Court’s ruling on the Motion for an Order Certifying Class Under Rule 23(b)(1)(B) (“Motion”) filed by the Plaintiffs, Madison Associates, the Official Creditors Committee of the Estate of Madison Associates, United Jersey Bank and Allstate Municipal Income Opportunities Tr...
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ORDER DENYING DEBTORS’ MOTION FOR NUNC PRO TUNC CORRECTION OF ORDER CONFIRMING PLAN Now on this 31st day of January, 1995, the Court considers debtors’ Motion for Order Nunc Pro Tunc Correcting Clerical Errors in Order Confirming Plan.1 The motion is denied for the reasons that follow. The parties agreed to a stipulation of facts, filed April 5, 1993, outlining the relevant circumstances and ev...
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PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN NON-CORE PROCEEDING1 American Business Supply, Inc., the Chapter 11 debtor, distributes office supplies, computer supplies, copier supplies, and storage racking.2 Steven Tyrrel is its president, sole shareholder, and responsible party for the debtor-in-possession. Barbara Lowry and Caroline Reynolds (hereinafter “Lowry,” “Reynolds”, or collectiv...
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ORDER DENYING DEBTORS’ MOTION FOR RECONSIDERATION OR TO ALTER OR AMEND The debtors ask the Court to reconsider its January 31, 1995, order denying the debtors’ Motion for Order Nunc Pro Tunc Correcting Clerical Errors in Order Confirming Plan.1 The January 31, 1995, order denied debtors’ request to amend their confirmation order to allow payment of a real estate tax claim held by Washington Cou...
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DECISION ON THE ADVERSARY PROCEEDING COMMENCED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS SEEKING TO HAVE THE CLAIM OF BAMBU SALES, INC. EQUITABLY SUBORDINATED The matter before the Court is an adversary proceeding commenced by the Official *677 Committee of Unsecured Creditors of Interstate Cigar Co., Inc. (the “Plaintiff’) seeking to have the claim of Bambú Sales, Inc...
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OPINION GRANTING DEFENDANT’S MOTION TO DISMISS This adversary proceeding was filed by the plaintiff to determine the dischargeability of a debt. Count I seeks a determination that the debt is nondischargeable under § 523(a)(4). Count II seeks the same relief under § 523(a)(6). The defendant filed the present motion for dismissal, or, in the alternative, summary judgment. The Court now...
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MEMORANDUM OPINION On March 2, 1995, the Court heard a Motion to Determine Amount of Claim, in which Grande Cheese Company (“Grande”), a judgment creditor of the Debtor, asserted an entitlement to postpetition attorneys fees and costs as part of its claim or as an administrative expense. For the reasons that follow, the Court rejects Grande’s claim for postpetition fees and costs. BACKGROU...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Following trial of this Adversary Complaint, both sides having rested, based on consideration of evidence admitted and arguments of the parties, the Court now makes and enters the following Findings of Fact and Conclusions of Law. *794 FINDINGS OF FACT Introduction This Adversary proceeding relates to the bankrupt...
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MEMORANDUM This adversary proceeding is before the court upon cross-motions for summary judgment filed by the plaintiff, Sharon Mills, and the defendant, Scott N. Brown Jr., the Chapter 7 trustee (“Trustee”). Having considered the briefs and exhibits filed by the parties and having concluded there is no genuine issue of material fact such as might require trial, the court will grant s...
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MEMORANDUM OF DECISION Cigna Insurance Company moves to dismiss the debtors’ complaint for lack of subject matter jurisdiction. BACKGROUND In January of 1994, Gulf USA Corporation (“Gulf’) brought an adversary proceeding against certain of their officers and directors for breach of fiduciary duty, corporate waste, and preferential and fraudulent transfers. See Gulf USA...
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ORDER The panel has received and reviewed appellant’s “Notice of Objection to Appeal Being Heard and Determined by Bankruptcy Appellate Panel” (the “objection”). The notice of appeal was filed on May 12, 1995. It was not accompanied by an election for the appeal to be heard by the district court; the objection requesting that the matter be *594heard by the district court was filed on June 1, 199...
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OPINION A creditor bank filed a complaint against the debtors pursuant to § 523(a)(2)(A) 1 , seeking to have the debtors’ credit card debt to the bank determined to be nondischargeable. The debtors did not respond to the creditor’s complaint, and the clerk of the bankruptcy court entered the debtors’ default. The creditor filed a motion for entry of a...
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DECISION AND ORDER This matter comes before the court on the motion of the Debtor to have his case reopened, to have an order entered staying a contempt order entered by the Circuit Court of Albemarle County, Virginia, against the Debtor, and to have the court find that Marjorie Ann Hale, the Debtor’s ex-wife, (herein “Ms. Hale”) and her counsel, Charles R. Haugh, Esquire, have violated the per...
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OPINION In each of these cases, the Chapter 13 trustee appeals the denial of her request that the debtors be required to submit to the trustee any postpetition tax refunds received by the debtors during the first thirty-six months of their Chapter 13 plans. The facts of each case are straightforward and each case presents the same legal issue. Therefore, we deal with both cases in thi...
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MEMORANDUM OF DECISION The matters before the court are motions for summary judgment filed by one of the defendants, First National Bank of Shelby (FNB), on complaints for turnover of property of the respective estates. The plaintiffs in the actions, Mildred M. Stump and Rosanna. M. Stump, respectively, (together, Plaintiffs), each filed a response to FNB’s motion. After conducting a hearing, t...
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ORDER ALLOWING OBJECTION TO PRIORITY CLAIM The matter before the court in this chapter 7 case is the objection to the $41,682.32 priority claim (Claim # 38) of Jefferson-Pilot Life Insurance Company filed by Automatic Vehicle Navigation, Inc. (AVN). AVN is a creditor of the chapter 7 debtor, AER-Aerotron, Inc. (Aerotron), that purchased the debtor’s assets and assumed many of its liabilities. A...
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OPINION The United States of America (“the United States”) appeals the bankruptcy court’s order of October 22, 1993, which denied its motion to vacate the order disallowing claims of the Internal Revenue Service (“the IRS”). The United States contends that notice of the debtors’ objections to the proofs of claim was insufficient, pursuant to Federal Rule of Bankruptcy Procedure 7004 ...
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MEMORANDUM OF DECISION I. INTRODUCTION Before the Court for determination is a “Motion for Determination of Classification” (the “Classification Motion”) filed by Lawrence Savings Bank (the “Bank”). Through its motion, the Bank seeks a determination that the classification of its claim as provided in an amended Plan of Reorganization filed by the debtor Gato Realty Corporation, d/b/a...
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MEMORANDUM The trial of this Adversary Proceeding was conducted on May 22, 1995. Although the Complaint requests relief in three counts, the Parties agreed prior to trial that certain child support and medical and day care expenses are not dischargeable and that the sole issue to be determined here is that portion of Count I that seeks a determination of non-dischargeability of an awa...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Before the Court are two motions: one brought by a third party beneficiary of a real estate sale contract against the seller (Debt- or) and buyer seeking specific performance; and the other brought by the buyer seeking rescission of the same contract. JURISDICTION This Court has jurisdiction over the subject matter of this proceedin...
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DECISION AND ORDER This adversary proceeding involves two steel companies, Valley Steel, (herein “Valley”) the Debtor in Chapter 7, and New Jersey Steel, (herein “NJS”) a creditor of Valley and the transferee of payments on account of an antecedent debt owed by Valley. The Trustee filed this adversary proceeding alleging that Valley made preferential payments to NJS in violation of 11 U.S...
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MEMORANDUM DECISION ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT EXPUNGING CLAIM On January 31, 1995, Atlantis International, Ltd. (“Atlantis”) and Brian Appel (collectively, “Claimants”) filed a Proof of Priority Claim dated January 30, 1995 (the “Claim”) against Houbigant, Inc. (“Houbigant” or “debtor”) in the amount of $6,413,000.00. As support for that claim, Atlantis annexed a verifie...
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OPINION The parties contest the dischargeability of indebtedness resulting from transactions with a credit card, that boon and bane of mankind. The GM Card (“GM”) asserts its debt is excepted from discharge as a debt for money or property “obtained ... by ... false pretenses, a false representation, or actual fraud_” 1 GM says that in obtaining goods and cash through use of...
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OPINION Agri-Tech Farms is a partnership consisting of Wallace LeRoy Green, Kenneth L. Green, and Forrest L. Green. On May 13, 1994, the partnership and all three partners filed separate Chapter 11 cases in bankruptcy. In 1994 the fanning operations of the partnership generated post petition taxable income which requires the individual partners to pay federal and state income taxes totaling $15...
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OPINION INTRODUCTION This adversary proceeding involves the possession by debtor/defendant, the Clark Entertainment Group, Inc. (“Clark”), of certain audio tapes which were created by Columbia Records (“Columbia”), predecessor to Sony Music Entertainment Inc., plaintiff herein (“Sony”), and embody performances of Sony contracted artists. Plaintiff asserts common law causes of...
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OPINION On January 5, 1995, John Stallings (debt- or/plaintiff) filed a complaint against Robert McCormack (defendant) seeking $47,228.27 *164for work performed pursuant to the terms of a subcontract between plaintiff and defendant. A summons was issued on the same day. Counsel for plaintiff subsequently filed a signed certificate of service indicating that defendant had been served by first cl...
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DECISION This matter is before the court on the motion by Marketplace I, LTD. (Marketplace), to require the debtors, Slim Life Weight Loss Centers of Mid Jersey, Inc. (Slim Life) to pay administrative rents, pursuant to Bankruptcy Code section 865(d)(3). 1 In support of this motion, Marketplace has submitted a Letter Brief and the Certification of Donna Scoppetuolo, both fi...
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MEMORANDUM OF DECISION I. The matter before the court is a complaint brought by the plaintiff, The Norwich Savings Society, objecting to the granting of a discharge to George R. Flonnes, the debtor-defendant. 1 The plaintiff’s principal argument is that the debtor, with intent to hinder, *38 delay, or defraud a creditor or an officer of the estate, transferred property of the estate aft...
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RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT I. John J. O’Neil, Jr., Esq., trustee of the Chapter 7 case of Northeastern Contracting Co., Inc., the debtor, timely filed a complaint which, as amended, seeks to recover from John Deere Industrial Equipment Company, Inc. (Deere), Salvatore J. Marino, Sr. and Salvatore J. Marino, Jr. (together “the Mari-nos”), a monetary transfer as preferential...
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DECISION AFTER TRIAL This adversary proceeding was initiated by the Debtor, Carole Goranson, in an effort to have her student loan indebtedness declared dischargeable as an undue hardship under 11 U.S.C. § 523(a)(8). The difficulty in this case arises in trying to apply traditional “hardship” analysis to a Chapter 13 case. The Court today rules that a debtor should neither be penalized nor aide...
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DECISION AFTER TRIAL This is a dischargeability proceeding under 11 U.S.C. § 523(a)(2)(B), which has been fully tried to the Court and submitted for decision. The following constitutes the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52. The Court finds that the Plaintiff has failed to carry its burden of proving that the Debtor signed an incomplete loan application ...
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MEMORANDUM DECISION ON MOTION OF THE UNITED STATES HOLOCAUST MEMORIAL COUNCIL FOR SUMMARY JUDGMENT The Liquidating Trustee and the Plan Committee established under the confirmed joint chapter 11 plans in these bankruptcy cases (collectively, the “Plan Committee”), object to the claim of the United States Holocaust Memorial Council (the “Council”) against Eli S. Jacobs (“Jacobs”). The ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION INTRODUCTION In this case the Court must decide if a confession of judgment entered into between the Debtor and the Bank for consideration results in a judicial lien subject to avoidance under 11 U.S.C. § 522(f)(1), or a consensual lien which is not subject to avoidance. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding p...
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DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RELATING TO ESTATE ACCESS TO MEDICAL MALPRACTICE INSURANCE COVERAGE On cross motions for summary judgment, this court must weigh the competing claims of Medical Malpractice Insurance Association (“MMIA”) and Hal M. Hirsch (the “Trustee”), Trustee of the estate of Dr. Jeffrey E. Lavigne (“Lavigne”). MMIA brought this adversary proceeding to preven...
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MEMORANDUM OF OPINION ON CONTRACT Max R. Tarbox (Trustee), Trustee in Bankruptcy for Douglas Ferguson and Amber Ferguson (Debtors) seeks to recover for pre-petition services rendered by Mr. Ferguson to the John Q. Hammons Company d/b/a Holiday Inn Lubbock Plaza (Hammons). 1 *124 The court finds that the Trustee should recover $11,945.27 from Hammons. 2 FAC...
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MEMORANDUM OPINION This matter is before the Court on Motion to Allow Late Proof of Claim filed in this ease by Premier Financial Services Company (“Movant”). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(B) and (G). For the following reasons, the Court will deny the motion. These findings of fact and conclusions of law are published in compliance with Fed.R.Bankr.P. 7052....
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OPINION Counsel for chapter 11 1 debtors and debtors in possession filed a second interim fee application 2 following conversion of the case to chapter 7 and appointment of a chapter 7 trustee (the “trustee”). The bankruptcy court denied the fee application in its entirety and directed counsel to turn over to the trustee the retainer which counsel had received from the debtors prior to the ...
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DECISION AND ORDER ON “NOTICE OF INTENT BY RODOLITZ CORPORATION, DEBTOR AND DEBTOR IN POSSESSION, TO ENTER INTO AND PERFORM UNDER LEASE AGREEMENT DATED MARCH 31, 1995 BY AND BETWEEN RODOLITZ HOLDING CORPORATION AND PAINT APPLICATOR CORP. OF AMERICA, INC.” By “Notice of Intent By Rodolitz Holding Corporation, Debtor and Debtor in Possession, To Enter Into And Perform Under Lease Agreement Dated M...
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DECISION AND ORDER ON NOTICE OF INTENDED SALE OF PROPERTY Gregory Messer, Trustee of Brookville Plumbing & Heating, Inc., debtor, gave notice that “pursuant to 11 U.S.C. 704(1) and 363(b) the Trustee, Gregory Messer, Esq., will sell through Jackson Hecht Associates, Inc., at public auction free and clear of all liens and encumbrances, if any, same to attach to the proceeds of sale, on Thursday,...
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OPINION INTRODUCTION Before the court is the trustee’s motion objecting to the claim of exclusion, or in the alternative, exemption of 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 IVIareh 20, 1995 and reserved decision. This court has jurisdiction over the matter pursuan...
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OPINION SUMMARY Appellant, Henry M. Ramirez, Esq. (“Ramirez”), is an attorney practicing law in San Diego, California. To collect on a judgment against Ramirez, the appellee, Leonard Goldberg (“Goldberg”), a chiropractor whose *586practice is also located in San Diego, obtained a writ of execution from the San Diego County Municipal Court on July 13, 1998. The writ placed a levy upon money and e...
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OPINION I The bankruptcy court granted the trustee’s motion to reopen the debtor’s bankruptcy case. The trustee sought to reopen the case in order to pursue a fraudulent transfer action against the debtor’s wife. The debt- or’s wife moved to set aside the order, but the court denied that motion. The wife has appealed; however, she lacks standing, Therefore, the appeal is DISMISSED, jj FAC...
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ORDER OVERRULING OBJECTION TO CONFIRMATION OF PLAN This matter is before the Court on an Objection to Confirmation of Plan filed on October 27, 1994 by Peggy D. Dew, a creditor in this case. After notice, a hearing was held on December 12, 1994. Susan Eason, the Debtor, Kenneth Gomany, the attorney for the Debtor, F. Hilton-Green Tomlinson, the attorney for the Movant, and ...
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ORDER DENYING DEBTOR’S MOTION TO DISQUALIFY Before the Court is the Debtor’s 28 U.S.C. § 455 request that the undersigned “be disqualified in the within proceedings,” on the ground that our March 10, 1995, Order regarding attorney’s fees “casts a cloud of partiality over these proceedings.” This is so, the Debtor argues, because the denial of the fee application of Miller, Scott, Howe & Kelly, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING MOTION TO REQUIRE TRUSTEE TO EXAMINE ACTS AND CONDUCT OF DEBTOR TO DETERMINE WHETHER GROUNDS EXIST FOR DENIAL OF DISCHARGE Upon the evidence and argument submitted at the evidentiary hearing, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT On August 30, 1994, debtor filed chapter 7 bankruptcy and Gre...
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DECISION ON DEFENDANT’S MOTION TO DISMISS The debtor (“BIG”), as the sole beneficiary of MMG Realty Trust (“MMG”), brought this adversary proceeding to avoid a second mortgage granted by Marvin M. Glick (“Glick”) on certain real estate owned by MMG. Debtor alleges that there was no consideration for the mortgage and that it is avoidable as a fraudulent conveyance under M.G.L. c. 109A § 4. The def...
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DECISION ON MOTION TO DISMISS OR TRANSFER VENUE Madonna S. Pettit (“Debtor”) filed her original petition under Chapter 7 on October 27, 1992. A creditor of the Debtor, International Investigations, Inc. (“Movant”) has filed the present motion to dismiss the case or transfer it to the Eastern District of Virginia. The motion asks that I find that Debtor failed to satisfy the 180-day venue requ...
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*914 FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon a complaint to except certain debts from defendant’s discharge pursuant to 11 U.S.C. § 523(a)(2)(B) and § 528(a)(6). After a trial on April 8,1993, this Court entered an order abating its decision in this proceeding until a motion for rehearing filed by plaintiff in the Circuit Court for Putnam County, Florida...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a complaint to revoke defendants’ discharge pursuant to 11 U.S.C. § 727(d)(2) and § 727(e)(2)(B). Upon the evidence presented at trial on February 24, 1995, and February 27,1995, the Court enters the following findings of fact and conclusions of law: FINDINGS OF FACT 1. At the time of their Chapter 11 fil...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING MOTION TO AVOID LIEN IMPAIRING DEBTOR’S EXEMPTION Came on for hearing on the 3rd of May, 1995, the Motion to Avoid Lien Impairing Debtor’s Exemption. Counsel for Debtor Bruce R. Levi and for Nancy Lee Hoffmann presented the matters herein. The Court heard evidence and argument of counsel, and makes the following findings of fact and conclusion...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon the Trustee’s objection to Claim 200 filed by Barbara Ann Smith (claimant) seeking a priority unsecured claim of $1,842.45. Upon the evidence presented at a hearing on March 30, 1995, the Court enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Prior to the filing of the Stockbroke...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon Pan American World Airways’ complaint objecting to defendants’ discharge pursuant to 11 U.S.C. § 727(a)(3) and (a)(4)(A). The complaint alleges that the defendants failed to preserve records from which their financial condition could be ascertained and that the defendants knowingly and fraudulently made a false o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO CLAIM 41 This case is before the Court upon Adventure Resorts of America, Inc.’s (“Debtor”) Objection to claim 41 filed by the United States Internal Revenue Service (“Claimant”). The claimant assessed a deficiency against the debtor for failing to withhold taxes on interest paid to a foreign corporation and levied penalties against the debtor for f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a Motion for Summary Judgment filed by defendant, City of Jacksonville, a body corporate (“City”) pursuant to Federal Rule of Bankruptcy Procedure 7056. Upon the evidence presented at a hearing on January 18, 1995, the Court enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Prior t...
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*10DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Four limited partners of Belle Isle Limited Partnership (“BI”) (“Plaintiffs”) commenced these adversary proceedings on their own behalf as well as derivatively on behalf of BI,1 against BI’s three general partners, Edward G. LeRoux, Jr. (“LeRoux”), Albert F. Curran, Sr. (“Curran”), and Summit Investment and Development Corporation (“Summit”) (coll...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT On May 10, 1991, debtors filed their voluntary petition under Chapter 13 of the Bankruptcy Code. 1 Now, more than four full years later, this court is being asked to nullify what is perhaps the primary result accomplished by debtors in their successfully completed Chapter 13 plan. BACKGROUND Debtors executed a mortgage on thei...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a complaint to determine the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(3)(B). Upon the evidence presented at trial on January 10,1995, the Court enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Plaintiff filed for relief under Chapter 13 of the Bankruptcy Co...
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DECISION REGARDING MOTION FOR RECONSIDERATION I. Introduction On November 29, 1994, I issued an order denying the Debtor’s claim of exemption in his Individual Retirement Account (“IRA”) to the extent that it exceeded 7% of his total income during the five years preceding the date on which he filed for relief under the Bankruptcy Code pursuant to the last sentence of M.G....
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ORDER GRANTING DEBTOR’S MOTION TO AVOID LIEN This matter came before the Court on debtor’s Motion to Avoid Lien of creditor, Aveo Financial Services (AVCO). AVCO filed an objection to debtor’s motion and the matter came on for hearing on January 31, 1995. Appearing at said hearing were Marc Gertz, counsel for debtor; and Stephen Hobt, counsel for AVCO. Counsel briefly stated their respect...
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MEMORANDUM DECISION Debtor Billy Ray Huskey (“Debtor”) makes this motion for immediate distribution of funds being sequestered, claiming the funds are his exempt community property from the sale of the marital residence. The Debtor’s ex-spouse, Jeannette Joy Huskey (“Mrs. Huskey”) opposes the motion, claiming she either owns the funds or has a security interest. Although filed in an adver...
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MEMORANDUM OPINION I. INTRODUCTION The Debtor, Saul Foos, ran a “Ponzi scheme” with considerable success until its inevitable collapse resulted in this involuntary chapter 7 bankruptcy case. This adversary proceeding is an interpleader action to determine the entitlement to funds that are proceeds of one of the Debtor’s deceits. The present motion is by Skadden, Arps, Slate, Meag...
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MEMORANDUM OF OPINION GRANTING COMPLAINT TO RECOVER FRAUDULENT TRANSFER This adversary was tried to the Court on January 24, 1995. The trustee appeared by J. Michael Morris of Klenda, Mitchell, Aus-terman & Zuereher, Wichita, Kansas. The defendant, Midway Southern Baptist Church (the “defendant” or the “church”) appeared by Edgar W. Dwire of Malone, Dwire & Jones, Wichita, Kansas. ...
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MEMORANDUM OPINION This matter came before the Court on a Motion to Determine Tax Liability filed by the Debtor, Upton Printing Company. The *905 Motion addresses the federal tax liability of the Debtor. A hearing was held on the Motion at which time the Court heard the statements of counsel and the testimony of witnesses and received documents into evidence. The hearing ...
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MEMORANDUM OPINION This matter came before the Court on the Debtor, Duane E. Ullrich’s, Objection to Claim No. 8 as Amended by Claim No. 14 Filed by the Internal Revenue Service. Appearing were S. Craig Wakefield, attorney for Duane E. Ullrich, the Debtor; and Brian Schwalb, attorney for the Internal Revenue Service. After reviewing Proofs of Claim Nos. 8 and 14, the Brief in Support of Unite...
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MEMORANDUM OPINION Debtors brought this Motion for Summary Judgment (the “Motion”) to have this court determine that certain tax liabilities were discharged in their Chapter 7 case. The Internal Revenue Service (the “IRS”) opposed the Motion and filed its own Motion for Summary Judgment (the “Cross-motion”) to have the court fix Debtors’ tax liabilities for the tax years in question. I took the...
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MEMORANDUM DECISION Susan McLaughlin wanted to purchase a new mobile home from Steenberg Homes (“Steenberg”). 1 The purchase was to be funded in part by financing available through Steenberg. Security Pacific Housing Services (“SPHS”) conditionally agreed to accept from Steenberg an assignment of MeLaugh- *173 lin’s retail installment contract. After the assignment...
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ORDER On the 16th day of May, 1995, the above-referenced adversary proceeding came on for trial in Muskogee, Oklahoma. Counsel appearing were Steve Scherer for the Plaintiff and Regina Switzer for the Defendant. At the conclusion of the hearing, the Court requested that Plaintiffs counsel furnish the Court with the Plaintiffs tax returns for 1991, 1992, 1993 and 1994 and allowed the parties u...
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DECISION AND ORDER Heard on March 21 and 22, 1995, on the Debtors’ motions for sanctions against Nor-west Financial Services, Inc. and its attorney, John Pellizzari, Esq., for violating the automatic stay, 11 U.S.C. § 362(a), in the above-captioned eases. For reasons discussed in more detail below, we find that as to all three Debtors, Norwest and its counsel, clearly violated the automatic s...
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ORDER REOPENING CASE AND WAIVING FILING FEE This case is before the court on the application of Barbara G. Stuart, the United States Trustee, to reopen this case and waive the filing fee. Kathryn Page, Assistant United States Trustee, represents the United States Trustee. In her application, the United States Trustee alleges that the debtor has an interest in an asset which he failed to list on ...
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MEMORANDUM This case is before the court to determine if the credit card obligations owed by the debtor to General Electric Capitol Consumer Card Co. (“General Electric”) are excepted from discharge pursuant to § 523(a)(2)(A) of the Bankruptcy Code. I reject General Electric’s assertion that a debtor’s objective inability to repay credit card debt at the time a charge is made should result, a...
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OPINION Factual Background Nate M. Oliver (“Debtor”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code on June 21, 1993. Citicorp Savings of Florida, a Federal Savings and Loan Association (“Citicorp”) holds a second mortgage (“Mortgage”) on a condominium owned by the Debtor which is located in Fort Myers, Florida (the “Property”). On or about April 26, 1994,...
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MEMORANDUM This case is before the court upon trial to determine dischargeability of a claim between former spouses. Debtor, Kenneth James Nowak, asserts that the claim is properly characterized as arising from a division of property. I conclude that the debtor is estopped from claiming that the debt is not alimony because debtor claimed past payments as alimony for tax purposes. Alternativel...
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ORDER This proceeding came on for hearing on motions for summary judgment by defendants Firstar Bank Milwaukee, N.A., and Charles W. Ries. Clark T. Whitmore appeared for Firstar Bank and Charles W. Ries appeared in propria persona. Mark Stephenson and John P. Sullivan appeared for the plaintiff. Gary W. Koch appeared for Farm Credit Services of Minnesota. Malcolm D. MacGregor appeared...
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SUPPLEMENTAL OPINION At a trial held on April 19, 1995, the Court found the defendant liable to the plaintiff for unpaid wages of $280.25 and for conversion of $3,050 from the plaintiffs bank account. The Court found these debts to be nondis-chargeable under § 523(a)(6). The plaintiff now requests double damages on the wage claim, treble damages on the conversion claim, and attorney fees in the ...
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ORDER DENYING MOTION “TO PROCEED WITH CHAPTER 12 CASE” This Chapter 12 case came on before the Court on January 12, 1995, for hearing on the motion of Ernest E. Erickson, Jr. for an order authorizing the continuation of this case and the administration of the bankruptcy estate notwithstanding the death of the named debtor. Upon the moving and responsive documents, the record made at the h...
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ORDER A motion to dismiss this bankruptcy proceeding for failure to make payments due under the plan was filed by the Chapter 13 trustee. At hearing, the debtors requested an opportunity to modify the plan and the trustee calculated the monthly payment amount necessary for the debtors to com- *332 píete the payment total originally confirmed November 12, 1991 under a five-year plan of repay...
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MEMORANDUM OF OPINION DENYING COMPLAINT TO DETERMINE DISCHARGEABILITY This adversary proceeding is before the Court on Plaintiff Dr. Jack Kayes’ (“plaintiff’ or “Kayes”) Complaint to Determine Dis-chargeability of Indebtedness. Kayes appears by Terry C. Cupps of Foulston & Siefkin, Wichita, Kansas. The debtor appears by William H. Zimmerman of Minter, Case & Zimmerman, Wich...
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ORDER This adversary proceeding was filed by Vera Pinkston, debtor in the underlying Chapter 13 case, alleging violation by Security Finance Corporation of Georgia, d/b/a Se- *987 eurity Finance Corp. (“Security Finance”), the holder of a claim in debtor’s bankruptcy case, of both the Federal Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. and implementing regulat...
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MEMORANDUM OPINION AND ORDER The plaintiff, Jeffrey H. Mims, the Chapter 7 trustee of the Craftsmen, Inc., seeks to recover from the defendant, United States Department of Veteran Affairs, monies allegedly due as a result of the government’s termination of a contract with Craftsmen. The court denied the government’s previous motion to dismiss holding that the government had waived sovereign i...
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MEMORANDUM OPINION AND ORDER The debtor, Donato Yrlas, Jr., moves the court to confirm his Chapter 13 plan filed January 20,1995. Ryland Mortgage Company objects. The court conducted a hearing on the motion on March 23, 1995. At issue is the debtor’s proposed treatment of the pre-petition arrearage of mortgage payments owed Ryland. Ryland holds a claim secured by a security interest in real...
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OPINION Background H.K. Porter Company, Inc. (“Porter” or “Debtor”) filed its voluntary Petition under Chapter 11 of the Bankruptcy Code on February 15,1991. On July 9,1993, Porter filed, at Motion No. SCBS-71, its motion for authority to settle litigation which had been pending for many years against Metropolitan Dade County-for the amount of $1,200,000 and for authority to ...
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*280 MEMORANDUM OF OPINION Sunarhauserman, Inc. (the “Debtor”) was a party to a collective bargaining agreement with the United Furniture Workers of America, Local 450, covering employees in its wall products business when the petition commencing this chapter 11 case was filed. United Furniture Workers Pension Plan A (“Plan A”) is the multi-employer pension plan which administer ...
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MEMORANDUM I.PROCEDURAL BACKGROUND AND FACTS The matters before the Court for determination are 1) the Objection of Federal National Mortgage Association (“FNMA”) to the Chapter 13 Plan (the “Plan”) filed by Debtors, Romao and Maria Galvao (the “Debtors”); 2) the Debtors’ Motion Under 11 U.S.C. § 1322(b)(2) to Modify the Rights of the Holder of a Secured Claim (the “§ 1322(b)(2) Motion”), thr...
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MEMORANDUM OF OPINION The Pension Benefit Guaranty Corporation (“PBGC”) filed claims in this case resulting from the termination of the Hauserman, Inc. Salaried Employees Retirement Income & Trust Plan (the “Plan”). The PBGC’s claims arise under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq., (“ERISA”). The parties have resolved two of the PBGC’...
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ORDER Before the Court is the Debtor’s Motion to Discharge the Debt of St. Clair Condomim-um Association. TMs Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. TMs is a core proceeding. Debtor filed this chapter 7 bankruptcy on August 19, 1992, and received Ms discharge on December 21, 1992. At that time, debtor owned and had been renting to a tenant a condomm...
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DECISION ON MOTION BY HOME INSURANCE COMPANY OF ILLINOIS FOR RELIEF FROM AND MODIFICATION OF THE AUTOMATIC STAY This matter comes before the Court on the motion of Home Insurance Company of Illinois (“Home”) for relief from and modification of the automatic stay pursuant to section 362(d) of the Bankruptcy Code 1 to permit Home to rescind through arbitration a policy of insuran...
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MEMORANDUM I. INTRODUCTION The matters before the Court for determination are the “Motion to Strike Notice of 1111(B) [sic] Election as filed by Peter and Rose Zakoian” (the “Motion to Strike”) and the United States Trustee’s objection to the “Disclosure Statement with respect to Plan of Reorganization Dated March 28, 1995” filed by Paul O’Leary (the “Debtor”). Peter and Rose Zakoian (collect...
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MEMORANDUM OPINION Debtor Patricia Ann Jones requests reconsideration of an order permitting her to avoid only a portion of a judicial hen that impairs her claimed homestead exemption. She contends that the recently-enacted amendment to the Bankruptcy Code set forth at 11 U.S.C. § 522(f)(2) reverses recently promulgated case law. Proper application of this provision, debtor contends, ...
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MEMORANDUM I. BACKGROUND The Debtors, Thomas and Nannette Constantine (“Debtors” or “the Constantines”), filed a voluntary petition for relief under Chapter 7 on January 31,1995. On March 3, 1995, the plaintiff, Priscilla Spear (“Spear”), brought this adversary proceeding, seeking a determination that a debt owed to her by the Debtors is nondisehargeable pursuant to 11 U.S.C. § 523(a...
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ORDER On April 24, 1995, the Court entered a Memorandum and Order determining that a debt owed by Vittorio Gramolino (“Debtor”) to American Title Insurance Company (“Plaintiff’) was not based upon false representations or fraud and was therefore dis-chargeable in this Chapter 7 case. On May 4, 1995, the Plaintiff filed a motion to amend or alter the Court’s judgment. This Order is bas...
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REASONS FOR ORDER This matter comes before the court on the complaint of Stephen L. Read (“Stephen Read” or “debtor”) for a preliminary injunction. Patricia I. Read (“Patricia Read”) opposes the motion. The court has reviewed the record, memoranda, and applicable law. Accordingly, the motion is denied for the reasons stated below.1 I. FACTS The ten year marriage of Stephen and Patricia Read was...
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OPINION I The trial court dismissed the appellant’s adversary action with prejudice, because the appellant had failed to serve the debtors within 120 days as required by Fed.R.Civ.P. 4(j). We AFFIRM. II FACTS Jeffrey E. Waldner and Brenda K. Wald-ner (“Debtors”) were the sole shareholders, officers and directors of Waldner Enterprises, Inc. (“Waldner Enterprises”)...
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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 August 21, 1992, the trustee filed a complaint seeking a determination as to the correct distributi...
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OPINION Introduction. Before the Court is yet another Motion in this contentious adversary proceeding between Ben Franklin Hotel Associates (the “Debtor”) and one of its two general partners, CAA/Kennington Properties (“Kenning-ton”), on the one hand (collectively the “Mov-ants”) and unsecured claimant Alfred A. Gilbert (“Gilbert”), on the other hand. At bottom, the underlyin...
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ORDER DETERMINING JAMES GUY TO BE IN VIOLATION OF THE AUTOMATIC STAY AND IMPOSING SANCTIONS On June 1, 1995 the Court heard the Trustee’s “Motion for Order Determining James Guy to be in Violation of the Automatic Stay and Motion for Sanctions” (“Trustee’s Motion”); the Trustee’s Motion for Protective Order; and James Guy’s “Motion to Compel Attendance at Deposition and for Continuance of Hea...
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OPINION OVERVIEW The debtor filed a chapter 11 petition and ceased business operations eighteen days later. The employees’ benefit plan sought administrative priority payment for the debt- or’s monthly contribution to its employees’ health plan and damages due on default under the terms of the debtor’s unrejected collective bargaining agreement and ERISA. The court allowed only 1...
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ORDER ON MOTION TO RECONSTITUTE CREDITORS’ COMMITTEE THIS CAUSE came on for consideration, on a Motion to Reconstitute Creditors’ Committee and objections to same by other creditors. The Court has considered the Motion, and the objection to reconstituting a creditors’ committee, together with the record, and finds as follows. Debtor filed for Chapter 11 reorganization under Title 11,...
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OPINION REGARDING CONFIRMATION OF DEBTORS’ PLANS OF REORGANIZATION Trevarrow Lanes, Inc. and RFZ, Ltd., related corporations principally owned by Richard Zielinski and Jeanette Van Wagoner, filed voluntary petitions for relief under chapter 11 on May 20 and September 16, 1991, respectively. Trevarrow Lanes is a 36-lane bowling center located at 4601 Van Slyke near three General Motors...
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DECISION AND ORDER DENYING “TRUSTEE’S OBJECTION TO EXEMPTION” Before the court is the “Trustee’s Objection to Exemption” (Doe. # 15). 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)(B). FACTS Francis Bresnahan (“debtor”) is a retired civilian employee of the U...
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DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Before the court is a motion of defendant to dismiss plaintiff’s complaint as untimely filed. 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)(F). FACTS 1) On June 13, 1991, Tower Metal Alloy filed a petition i...
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ORDER ON MOTION TO DISQUALIFY THE TRENAM, KEMKER LAW FIRM THIS MATTER came on for consideration upon Dueane Industries’ Motion to Disqualify the Professional Association of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill, and Mullins as legal counsel for Ralph Jay Harp-ley, Trustee. This Court has considered the evidence from the February 9, 1995, eviden-tiary hearing of Ducane’s motion to ...
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ORDER THIS CAUSE is before the Court upon the Objection to Confirmation, and the Motion for Relief from Stay, both filed on February 3, 1995, by creditors R.M. and Trella V. Tucker. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b) as exemplified by 28 U.S.C....
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ORDER OF DISMISSAL THIS CAUSE is before the Court upon the Motion to Dismiss filed by the debtor on May 4, 1995. The plaintiffs responded on May 12, 1995. Dismissal of this adversary proceeding is merited because the proceeding has been pending for five months without proper service of process, despite several Orders of Court directing that service be properly made. This adversary proceedin...
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MEMORANDUM OF DECISION Before the Court is an “Emergency Motion for an Order That the Massachusetts Alcoholic Beverage Control Commission Remove Liquor License from Delinquency List” (the “Motion”), filed by Christerminator, Inc. (the “Buyer”) and the request of the Plaintiffs (the Trustee in Bankruptcy of J.F.D. Enterprises, Inc. [the “Trustee” and “Debtor”, respectively], Park West ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the trial of the complaint to determine dis-chargeability pursuant to section 523(a)(5) relating to certain child support debts. Trial was held on May 1, 1995, at which time both parties appeared and presented evidence. Pursuant to a request of the parties, they were granted an opportunity to file post-trial briefs ...
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*375 MEMORANDUM OPINION I.INTRODUCTION This will constitute the court’s decision on a motion by the Lawrence Paper Company (“LPC”) to enforce the terms of a sale and a cross-motion by Tilden Financial Corporation (“Tilden”) for sanctions against LPC and/or auctioneer Alan P. Loeser and Company (“Loeser”). This court has jurisdiction pursuant to 28 U.S.C. §§ 1384(b), 157(a), and 151. This is a c...
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MEMORANDUM OPINION AND ORDER Duplitronics, Inc. (“Duplitronics” or “Debt- or”) has filed a complaint seeking a temporary restraining order, preliminary injunction and permanent injunction and declaratory judgment (“Complaint”) against Concept Design Electronics and Manufacturing, Inc. (“Concept Design”), The Hanover Bay Insurance Company (“Hanover”), Massachusetts Bay Insurance Compan...
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MEMORANDUM OPINION I.INTRODUCTION The matter before the court is the motion of Union Carbide Corporation (“Carbide”) for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure as incorporated into the Federal Rules of Bankruptcy Procedure by Rule 7012 and for payment of allowed claims. 1 For the reasons set forth below, the court denies Carbide’s motion f...
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MEMORANDUM ON DEFENDANTS B.T. COMMERCIAL CORPORATION AND NATIONSBANK OF NORTH CAROLINA, N.A. MOTION TO DISMISS OR FOR SUMMARY JUDGMENT The Committee of Unsecured Creditors of Tennessee Valley Steel Corporation (Committee) commenced this adversary proceeding on March 10, 1995, with the filing of its Complaint, entitled “Complaint for Equitable Subordination or Reclassification of Claim...
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ORDER The defendant Easy Money Title Pawn, Inc. (“Easy Money") has filed a motion for reconsideration of my order entered in this case June 9, 1995, and then amended June 12, 1995 1 , finding that Easy Money violated the Georgia Criminal Usury Statute (O.C.G.A. § 7-4-18) and the Federal Truth in Lending Act (15 U.S.C. § 1640 et seq.). The motion requests that I alter or amend my earli...
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ORDER On August 9,1993, Edward P. Molitor (the “Debtor”) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. On August 9, 1993, Daniel K. Schieffler (Schieffler) was appointed as bankruptcy trustee. On May 20, 1994, Schieffler filed this adversary proceeding against Pulaski Bank and Trust Company (Pulaski Bank), Trustee of...
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This case cogently illustrates a problem that is common to many disputes involving the hardship discharge of student loan obligations. At issue is whether this Court is to apply standards of hardship only to full repayment of the existing obligation as a single, unalterable claim, as opposed to payment of any lesser amount. If viewed from a different perspective, the issue becomes whether hardshi...
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MEMORANDUM OPINION This matter is before the Court on the Objection by the Chapter 13 Trustee to the claim of Deutz-Allis Corporation (“Deutz-Allis”), a creditor herein. The Trustee filed his Objection to Claim on March 1, 1995; Deutz-Allis filed its Response on March 15, 1995. The matter was heard on May 2,1995, and taken under advisement. The record in this case reveals that the debtors f...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon a Motion to Dismiss the Complaint filed herein by the Defendant, Fifth Third Bank of Northern Kentucky (Fifth Third). The basis of the Motion is that the underlying Chapter 13 case of the plaintiff-debtor herein has been dismissed by the Court. The movant, while stating that there is a split of authority with respect to whe...
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MEMORANDUM OF OPINION ON MOTION TO AVOID LIEN Albert Joseph Henry and Brigitte Kay Henry (Debtors) moved the court to avoid the hens claimed by Norwest Financial Texas, Inc. (Norwest) on various items of personal property. Norwest objected to the motion, asserting that the Debtors could not avoid its hen on a 200-amp Lincoln welder (welder). The court finds the hen should be avoided. ...
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MEMORANDUM DECISION Ngan Gung Restaurant, Inc., d/b/a the Silver Palace Restaurant (“debtor”), commenced this adversary proceeding for a declaratory judgment that an action brought pursuant to New York State Executive Law § 63(12) entitled People of the State of New York by Dennis C. Vacco, Attorney General of the State of New York v. Ngan Gung Corporation, d/b/a Silver Palace R...
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AMENDED MEMORANDUM OPINION Pursuant to Bankr.R. 7052, following are the Court’s findings of fact and conclusions of law from the hearing on January 3, 1995 and June 9,1995. The relief prayed for by Plaintiffs is denied. This is a Chapter 7 proceeding. The facts contained in the Stipulation of Evidence, attached hereto as Exhibit “1”, are adopted as findings by the Court. Thi...
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MEMORANDUM OF DECISION Upon consideration of Cross Motions for Summary Judgment, the parties agree that there is no general issue of material fact in dispute. Therefore, summary judgment is appropriate. Miller v. Federal Deposit Insurance Corp., 906 F.2d 972, 973 (4th Cir.1990). The undisputed facts are as follows: Debtor and Department of Navy entered into contract under which debtor supplied p...
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MEMORANDUM OPINION ON PLAINTIFFS’ MOTION TO VACATE OR MODIFY DEBTORS’ DISCHARGE Introduction This Adversary proceeding relates to the joint bankruptcy case filed by the debtors, Bruce Barr and Paula Barr (collectively “Debtors,” “Defendants” or “the Barrs”), under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Their bankruptcy case and this related Adver...
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ORDER DIRECTING RELEASE OF LIENS This matter came before the court on January 5, 1995, on Hurricane R.V. Park, Inc.’s Motion to Enforce the Bankruptcy Discharge and Hold the Internal Revenue Service in Civil Contempt. At the hearing on this matter, the United States appeared as the proper party to this matter in place of the Internal Revenue Service (“IRS”). George W. Pratt, Esq., appeared in b...
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MEMORANDUM ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on the 26th day of January, 1995 on plaintiffs motion for an order granting summary judgment. Appearances were as follows: Lowell Bottrell for the plaintiff, Michael Farrell; Edward Bergquist for the defendants, Mark and Tod...
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*9 DECISION AND ORDER This matter is before the court on the complaint of First Card Services, Inc. objecting to the discharge of the debt owed to it by Donna L. Flynn. Trial was held on April 26, 1995. First Card Services alleges that debtor incurred charges, cash advances, fees and costs through false pretenses, false representation or actual fraud under 11 U.S.C. § 523(a)(2)(A). * * ...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION AND MOTION FOR RELIEF FROM STAY This matter is before the Court on the request of Ridgewood Apartments of DeKalb County, Ltd. (“Debtor”) and its general partner, Cardinal Realty Services, Inc. (“Cardinal”) for confirmation of a jointly proposed First Amended Chapter 11 Plan (“Plan”). Federal National Mortgage Association (“Fannie Mae...
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ORDER The matter before the court arises by motions filed by the debtors, Wayne & Lavonna Wruck, on April 24 and May 25, 1995, pursuant to 11 U.S.C. § 1229(a). By their motions, the debtors are seeking to modify their second modified plan of reorganization (Plan) under Chapter 12 of the United States Bankruptcy Code in order to alter the manner by which the Plan is administered. The Plan,...
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MEMORANDUM OPINION The matters before the court are the amended motion of Catherine Steege, not individually but as trustee (“Trustee”) for the estate of Superior Toy & Manufacturing Co., Inc. (“Superior” or “Debtor”), for summary judgment against Nolan & Company Graphics and Advertising, Inc. (“Nolan”) and Nolan’s motion for summary judgment against the Trustee. The Trustee seeks to ...
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MEMORANDUM & ORDER The Chapter 7 Trustee, Wayne Drewes (Trustee), commenced the above-entitled action by Complaint filed on March 7, 1995, seeking to avoid a security interest in specified real property acquired by virtue of a mortgage given by the debtors, Kent and Twila Nies (Nies), to the Security State Bank of Wishek (Bank). The Trustee essentially asserts that the Bank’s mortgage is ...
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ORDER DISMISSING ADVERSARY CASE This matter is before the Court on the Federal Deposit Insurance Corporation’s (F.D.I.C.) motion to dismiss; the plaintiffs response thereto; and the F.D.I.C.’s reply to the response. In its motion to dismiss, the F.D.I.C. asserts that this Court does not have subject matter jurisdiction over the complaint (Complaint). As this is a purely legal issue, the C...
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MEMORANDUM AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ARISING OUT OF COMPLAINT TO DETERMINE DISCHARGEABILITY OF PARTICULAR SUPPORT DEBTS COMBINED WITH NOTICE OF THE ENTRY THEREOF The instant matters before the court are cross-motions for summary judgment pursuant to Fed.R.BankR.P. 7056 filed by the plaintiff, Dora Binder, and the defendant, Nathan I. Prager, the above-name...
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MEMORANDUM & ORDER The plaintiff-creditor, Erika Sateren (Erika), commenced the above-entitled adversary proceeding by Complaint filed on January 11, 1995, seeking to have obligations stemming from a state court divorce decree declared nondischargeable pursuant to 11 U.S.C. § 523(a)(5), (a)(6), and (a)(15). The defendant-debtor, Elmer Dale Sateren (Elmer), generally denies the allegations...
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*542 OPINION Before the Court are the two petitions of Magna Bank of Central Illinois (MAGNA) for relief from the automatic stay and its objection to the Debtor’s first amended Chapter 12 plan. The stipulated facts underlying this litigation are as follows. In September of 1986, the Debtor’s parents, Gerald E. Wright and Jennita A. Wright (WRIGHTS) mortgaged their farm real estat...
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MEMORANDUM OF DECISION Before the Court is the “United States Trustee’s Motion to Dismiss Chapter 11 Case or Transfer Case to an Appropriate Alternate Venue” (the “UST Motion”). The question presented is how the Bankruptcy Court should react when presented with a fact pattern predicted by those who decry forum-shopping. I. FACTS Regrettably, the facts are not in rele...
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MEMORANDUM OPINION The Chapter 7 involuntary petitioning creditors have filed a motion for sanctions under Bankruptcy Rule 9011, 28 U.S.C. § 1927 and 28 U.S.C. § 1912. The motion is directed at several attorneys and a client. I. BACKGROUND The original petitioners, Harold and Donna Markuson and Jeffrey Schultz, filed an involuntary Chapter 7 petition against Westin Capital Marke...
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DECISION AND ORDER PRELIMINARY STATEMENT Before the Court 1 is a motion by the Trustee for an order denying the exemption claimed by the Debtor as to certain annuities (the “Motion”). The relief is opposed. For the reasons set forth below, the Court holds that the Motion by the Trustee for an order *5 denying the exemption claimed by the Debt- or is denied. RELEVANT FACTUAL BACKGRO...
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ORDER DENYING DEBTOR’S MOTION FOR SANCTIONS AND ATTORNEY FEES Heard on the Debtor’s Motion for Sanctions against Dennis Cryan for an alleged willful violation of the automatic stay, 11 U.S.C. § 362(h). The travel and relevant facts are as follows: On March 24, 1995, Charles Munroe filed a petition under Chapter ll. 1 Later that same day, Dennis Cryan entered the Debtor...
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DECISION AND ORDER Heard on April 12, 1995, on the Motion of Federal Home Loan Mortgage Corporation (“FHL”) for Relief from the Automatic Stay, and for leave to evict the Debtor from the property located at 26 Valley Street, Cumberland, Rhode Island. At issue is whether the Debtor’s rights in the property, as of the date of commencement of the case, are superior to those of a pre-petition, ...
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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 to Determine Dischargeability of Debt filed by the Plaintiff, Peggy Fernandez (Fernandez). In her Complaint, Fernandez asserts that the debt owed to her by Jay A. McMahon (Debt- or) is nondischargeable under § 523(a)(6) of the Bankruptcy Code because according to h...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT ON OBJECTION TO EXEMPTION THIS IS a Chapter 11 case and the matter under consideration is Cross Motions for Summary Judgment on Objection to Exemption which have been filed by Creditors A.G. ANDRIKOPOULOS, GEORGE A. SEI-FERT, AND JOHN E. DUNN AND MARJORIE O. DUNN, as Trustees of the Dunn Trust, (hereinafter collectively referred to as the “Creditors...
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ORDER ON MOTION FOR SANCTIONS THIS is a Chapter 7 case and the matter under consideration is a Motion for Sanctions filed by Claire Ballato and Anthony T. Balla-to (Claimants). In their Motion, the Claimants seek the imposition of sanctions against the Debtor, Anthony J. Ballato, (Debtor), pursuant to F.R.B.P. 9011. The Claimants essentially assert that the Debtor violated F.R.B.P. 9011 by filing ...
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ORDER ON MOTION TO ASSESS FEES, COSTS AND DAMAGES THIS is a dismissed involuntary Chapter 11 case and the matter under consideration is a Motion to Assess Fees and Costs filed by Ed Jansen’s Patio, Inc. (Debtor) in the above *644 captioned case. The facts relevant to resolution of this controversy are basically without dispute and are as follows: Prior to the commencement of this case, the ...
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ORDER ON MOTION FOR RECONSIDERATION THIS IS a Chapter 7 liquidation ease and the matter under consideration is a Motion for Reconsideration and Motion to Vacate Order on Motion for Sanctions filed by Ste-phany Carr, Trustee, on November 10, 1994. The Motion is directed to an Order entered by this Court on November 1, 1994 which inter alia determined that the Trustee of the estate, Stephany Carr...
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ORDER This matter is before the Court on a motion filed by the debtors for reconsideration of the Order dated April 28, 1995, which denied their motion to reopen their bankruptcy proceeding in order to amend schedules to add an omitted pre-petition creditor. Oral arguments were presented to the Court on June 14, 1995, by Joseph Propst, II, for the debtors and Melissa Larsen for the creditor, Ra...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter before the court is the objection by the Debt- or, Helen Costello (Debtor), to two claims filed by Victor Levine (Levine). The first claim was timely filed on May 20,1993, and is based on a deficiency claim remaining after the mortgages encumbering two of the three properties were foreclose...
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MEMORANDUM This matter is before the Court on a complaint objecting to the dischargeability of a debt under section 523(a)(4). At issue is a debt owed by Gary Robert Polk (“Debtor”) to his ex-wife, Sherri R. Bollinger (“Plaintiff’) pursuant to a Decree of Dissolution and related documents. This is a core proceeding pursuant to Section 157(b)(2)(I) of Title 28 of the United States Code. The Court...
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OPINION AND ORDER SUSTAINING OBJECTION TO CONFIRMATION (Filed by Railroad Federal Credit Union) The matters before this Court are: 1. A Complaint to Set Aside Foreclosure and Reinstate Mortgage; 2. A Preliminary Hearing on Motion for Relief from Stay filed by Railroad Federal Credit Union; 3. An Objection to Confirmation filed by Railroad Federal Credit Union; and, ...
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MEMORANDUM OPINION AND ORDER This is the court’s Opinion on a core matter.1 Rexene Corporation has moved for summary judgment seeking to disallow or to limit claim # 445 of Bobby E. Seitz. I. Legal Standard In considering Rexene’s motion, the court will view the record in the light most favorable to Seitz to determine whether Rexene is entitled to judgment as a matter of law. Hon v. Stroh Brewer...
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ORDER OVERRULING THE DEBTOR’S OBJECTION TO THE CLAIM OF THE INTERNAL REVENUE SERVICE This matter is before the Court on the Debtor’s Objection to Allowance of Claim of the Internal Revenue Service. The IRS filed its claim in this case on October 28, 1992, in the amount $101,853.91 for unpaid withholding taxes for the second and third calendar quarters of 1990. The claim was docketed as claim ...
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This is the court’s decision on Continental’s objections to certain proofs of claim filed by the County of San Diego. This core matter was submitted on the pleadings1 at the County’s request. 28 U.S.C. § 157(b)(2)(B). BACKGROUND Before the bar date of September 27,1991, the County of San Diego filed a proof of claim, # 8704, in the amount of $11,013.80 which represented taxes due as of March 1, ...
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MEMORANDUM OF DECISION ORDERING IN CAMERA REVIEW OF ALLEGEDLY PRIVILEGED MATERIALS Sanctions Counsel moves 1 for an order requiring Bankers Trust Co. (BT), its former counsel, O’Melveny & Myers (“O’M & M”), and its present counsel, Winthrop, Stimson, Putnam & Roberts (WSP & R), collectively the “Sanctions Parties”, to submit to us, for in camera review, do...
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MEMORANDUM OPINION AND ORDER Southmark Corporation moves the court under Bankruptcy Rule 9024 for relief from the final order awarding compensation to Coopers & Lybrand. The Southmark examiner employed Coopers to do accounting investigatory work. Coopers had performed accounting and auditing work for Drexel Burnham Lambert. Southmark contends that Coopers failed to disclose to the cou...
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MEMORANDUM AND ORDER ON PLAINTIFF’S AND DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT The plaintiff in this nondisehargeability action alleges that the defendant-debtor fraudulently induced the plaintiff into making a loan to a nonexistent corporation of which the debtor represented he was the president. Each party has moved for summary judgment: the plaintiff, on the ground that a state court...
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MEMORANDUM OF DECISION AND ORDER GRANTING THE TRUSTEE’S OBJECTION TO THE DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION The trustee has objected to the debtor’s claim of homestead exemption. Since Oklahoma has opted out of the federal exemption scheme the decision turns on application of the state statute. OKLA.STAT. tit. 31, § 2 (1910) provides for homestead exemptions and says, in pertinent part “...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on June 22, 1995 upon the Complaint of AT & T UNIVERSAL CARD SERVICES CORP., (the “Plaintiff’), seeking to except the outstanding balance of debtor WALDO ROBERTO RAMIREZ’S AT & T credit card account from discharge under 11 U.S.C. § 523(a)(2)(A). The Court having heard the testimony, examined the evidence present...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial on May 15, 1995, on the Debtor’s complaint seeking to determine the dischargeability of certain student loans (“HEAL Loans”) and to hold the Pennsylvania Higher Education Assistance Agency [“PHEAA”] and/or Student Loan Servicing Center [“SLSC”]1 in contempt of Court for violation of the permanent injunction afforded by the Deb...
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OPINION The debtors moved to avoid a judicial lien pursuant to § 522(f)(1) 1 as impairing the debtors’ homestead exemption. The bankruptcy court denied the motion, stating that the issue was controlled by In re Chabot, 992 F.2d 891 (9th Cir.1993). The debtors appeal. We AFFIRM. I.FACTS The facts are not in dispute. The debtors/appellants, Akbar and Manijeh A...
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184 B.R. 356 (1995) In re William W. and Mary SHELLEY, Debtors. William W. and Mary SHELLEY, Appellants, v. John T. KENDALL, Trustee, Appellee. BAP No. NC-94-2059-MeAsV. Bankruptcy No. 94-4-2530. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted February 23, 1995. Decided June 23, 1995. *357 Edward S. Levinson, Oakland, CA, for appellants. Leonardo D. Drubach, Sa...
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OPINION Undisputed Facts Patricia Donovan (“Debtor”) and her husband owned real property known as 5891 Dalmatian Drive, Bethel Park, Pennsylvania (the “Property”). On February 6, 1995, between 10:00 a.m. and 10:30 a.m., the Property was exposed to Sheriffs Sale. The Sheriffs Sale was properly conducted. The Property was knocked down by the Sheriff to the successful third-part...
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OPINION OVERVIEW Lessor’s guarantors under a commercial real property lease appeal an order of the bankruptcy court allowing them an unsecured claim for damages due to termination of the lease. The court limited all damages by the provisions of § 502(b)(6) 1 and did not include amounts under various nonrental covenants within the definition of “rent reserved” under the...
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MEMORANDUM OF DECISION Plaintiff Susan Comisky is the former wife of debtor and defendant James Comisky. When they were divorced in 1991, their marital settlement agreement provided that James would have possession of the family home. Susan was to receive $38,619.00 for her share of the community, with $20,000.00 payable in cash upon refinancing and the rest in the form of a note secured by the...
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MEMORANDUM DECISION ON FEES ASSESSED AS SANCTION About six months ago I issued an amended decision awarding sanctions against Gerard Zwirn, Esq., the debtor’s counsel, and in favor of United Capital Corporation (“UCC”), the mortgagee of the debtor’s landlord, pursuant to 28 U.S.C. § 1927 and the inherent power of this court. In re French Bourekas, Inc., 175 B.R. 517 (Bankr.S.D.N.Y.1994). In...
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ORDER DENYING APPLICATION FOR APPROVAL OF EMPLOYMENT OF CHARLES O. BECK, JR., CPA This matter is before the Court on an Application for Approval of Employment of Charles O. Beck, Jr., CPA as certified public account for the Debtor. While there were no objections to the application, the Bankruptcy Administrator requested that the Court address the issue of whether Mr. Beck is a “disinteres...
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ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY AND DENYING CONFIRMATION This matter came before the Court for trial on the Motion for Relief From Automatic Stay filed by Chrysler Leaserve, Inc. Appearing were Ms. Cheiyl A. Daugherty, the attorney for the Debtor, Mr. James Greer, the attorney for Chrysler Leaserve, Inc., Mr. Charles King, the Assistant Standing Chapter 13 Trustee, and the D...
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ORDER GRANTING MOTION FOR RELIEF FROM STAY (For Lack of Jurisdiction) This matter came before the Court for trial on the Claim of First Mortgagee to Proceed with Mortgage Foreclosure and Right to Rent and Allow Tenant to Occupy *126Abandoned Property of Debtor Estate (Proceeding No. 12), the Claim and Notice by Sterling Limited, Inc., First Mortgagee to Improvements/Fixtures and Hand Delivered Not...
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Debtor appeals the bankruptcy court’s orders overruling his objection to his employee’s claim for indemnification, and denying his motion for reconsideration. We AFFIRM. STATEMENT OF FACTS Charles Ankeny (“Ankeny”) was president and largest shareholder of Willett’s Brewing Company (“Willett’s”), a restaurant and mi-erobrewery, in Napa, California. Stephen Meyer (“Meyer”) was employed ...
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*596MEMORANDUM OPINION ON COMPLAINT FOR TURNOVER OF AUTOMOBILE This matter came before the Court on a Complaint filed by the Plaintiff on November 22, 1994. After notice, a trial was held on January 9, 1995. David Tucker, the Debtor, Debra Bennett Winston, the attorney for the Debtor, Shea Maze, President of the Defendant, and Harold Ackerman, the attorney for the Defendant, appeared. The matter w...
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OPINION A Chapter 13 debtor appeals the bankruptcy court’s summary order denying confirmation of his Chapter 13 plan. I. FACTS The debtor, Preston Neil Nicholes, is the president, director, and sole shareholder of Boss Fruit & Vegetable, Inc. (“Boss Fruit”). Boss Fruit is an Idaho corporation and a licensee under the Perishable Agricultural Commodities Act (“PACA”) codified at 7...
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ORDER ON SUMMARY JUDGEMENT This adversary proceeding came before the Court on May 9, 1995 on a motion for summary judgment filed by the plaintiff and the defendants’ objection thereto. The plaintiff is seeking to bar the debtors’ discharge in the present bankruptcy case pursuant to 11 U.S.C. § 727(a)(8). The underlying facts are not in dispute. The debtors filed their first chapter 11 petition ...
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MEMORANDUM OPINION Debtor filed for relief under 11 U.S.C. Chapter 7 on November 18, 1994. At the § 341 meeting and from documentation and claims filed, the Chapter 7 Trustee determined that there was a problem with the alleged secured position of Fidelity Financial Services. For that reason the Trustee demanded that the debtor deliver possession of a 1994 Ford Probe which debtor had ...
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MEMORANDUM OPINION ON TRUSTEE’S MOTION FOR TURNOVER OF NON-EXEMPT PROPERTY THIS MATTER came on for hearing on April 6, 1995 on the motion of Mark Freund, trustee in this Chapter 7 bankruptcy case for turnover of non-exempt property of the debt *158 ors with respect to $1,088.78 in an income tax refund and $13,337.79 in real estate commissions, all of which were received b...
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ORDER This matter comes before the Court on the Objection of the MAE Group, Inc., Frank Maefsky, and Diane Gaffoglio (collectively hereinafter “MAE Group”) to the payment of postpetition interest to Harvey Mays (hereinafter “Mays”). The objection arises in connection with the use of cash collateral by Paul H. Anderson (hereinafter “Trustee”) which secures a debt held by Mays, a creditor of M4...
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*210MEMORANDUM OPINION INTRODUCTION In this Chapter 7 case I have been asked to consider five motions: (1) a creditor’s lift stay motion, (2) Debtor’s motion to have parties held in contempt for violating the automatic stay order of 11 U.S.C. § 362(a),1 (3) Debtor’s motion to enforce the stay order, (4) the motion of the controlling person of Debt- or to have parties held in contempt for violat...
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ORDER This matter comes before the Court on the Complaint to Determine Dischargeability filed by Cleve Carian (hereinafter “Plaintiff’). By his Complaint, the Plaintiff alleges that Wyman Daniel Dover (hereinafter “Debtor”) knowingly made false representations which induced the Plaintiff to continue a then existing indebtedness after having released the security interest related to the loan. Con...
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MEMORANDUM OPINION This matter is before the Court upon the trustee’s Complaint to Set Aside Fraudulent Transfer, brought pursuant to the New Mexico Fraudulent Transfer Act, § 56-10-14 et seq., N.M.S.A.1978 (1994 Supp.) (“FTA”). The court has jurisdiction over this ease pursuant to 11 U.S.C. § 544. This is a core proceeding. 25 U.S.C. § 157. The parties have agreed that the Court should d...
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MEMORANDUM OPINION The matter before the court is the Defendant’s motion to dismiss the above adversary proceeding. For the reasons expressed below, the motion is denied. Facts On October 10,1991, the debtor, Arthur F. Hazen & Co., Inc., filed a voluntary petition under Chapter 11 of the Bankruptcy Code (“Code”) in the United States Bankruptcy Court for the Western Distr...
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MEMORANDUM OF DECISION The issue before the Court arises from a complaint filed by the plaintiff, 150 North Street Associates Limited Partnership (the “Debtor” or “Plaintiff”) against the defendant, the City of Pittsfield (the “City” or “Defendant”) in which the Debtor seeks, pursuant to 11 U.S.C. § 505 1 , to reduce the amount of real estate taxes assessed, and, to the extent necessary, re...
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DECISION ON MOTION FOR SUMMARY JUDGMENT ON AMENDED PETITION UNDER SECTION 304 OF THE BANKRUPTCY CODE. Thomas Hackett (the “Petitioner”), the official liquidator of Fidenas International Bank Limited (“Fibank”), appointed by the Supreme Court of the Bahamas on January 27, 1995, moves for summary judgment on that portion of his amended petition under section 304 of the Bankruptcy Code (...
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MEMORANDUM OPINION AND ORDER INTRODUCTION In this Memorandum Opinion and Order, the Court will review a Motion to Reconsider this Court’s Order dated May 31, 1995, 182 B.R. 810, in which the Court denied a motion of a third party beneficiary of a real estate sale contract for specific performance and granted the non-breaching party’s motion for a refund of its earnest money and relieved that part...
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MEMORANDUM OPINION This matter comes before the court upon the applications filed on behalf of the debtors-in-possession (debtors) to employ the law firm of Muhlheim, Palmer, Zennaché and Wade (the Firm) as attorneys to represent the debtors and the applications of the debtors to employ Charles P. Thompson (appraiser) as appraiser in these cases. The United States Trustee (UST) has filed ...
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OPINION AND ORDER ON OBJECTIONS TO HOMESTEAD EXEMPTION AND DEBTOR’S MOTION FOR LIEN AVOIDANCE In this chapter 7 ease, the trustee, Gary A. Barney, and a creditor, Pitchfork Development Company (Pitchfork), filed objections to the homestead exemption claimed by the debtor, Mark Donovan Johnson. Pitchfork, and other creditors, Margot Belden, Doug and Pat McBride, and Pine Management (co...
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MEMORANDUM OPINION Before the court is the chapter 7 trustee’s objection to debtor’s claim of exemption of certain property under 11 U.S.C. § 522(b)(2)(B) as allegedly exempt from process under Pennsylvania law because it is held as tenants by the entireties by debtor and debtor’s non-debtor spouse. Specifically, debtor is attempting to exempt the following entireties property under §...
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DECISION REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT On August 15, 1994, Lena Messia (the “Debtor”) filed a voluntary Chapter 7 petition in this Court. Michael B. Feinman (the “Trustee”) was appointed as trustee. Debt- or’s schedules included an interest in the real property located at 18 Cheryl Lane, Boston, Massachusetts (the “Property”), which Debt- or valued at $135,000. She claimed an e...
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AMENDED MEMORANDUM OPINION On April 17,1995, came on to be heard the motion of Robert and Cindy Asay (“Debtors”) to determine whether fire insurance proceeds (covering the real property, building, and improvements (the “Building”), but not the contents of the Building) received post-petition for fire damages to such nonexempt business property are property of the estate. By agreement ...
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Memorandum I. Introduction Third National Bank in Nashville (“TNB”) instituted the above captioned adversary proceeding against James M. Fischer, Jr. (“Debtor”) asking for a declaratory judgment that it possesses a perfected security interest in the proceeds from the sale of Debtor’s Standard Candy Company, Incorporated (“Standard”) stock. The Debtor filed a Motion for Summary Judgme...
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MEMORANDUM OPINION ON MOTION OF GENERAL PLASTICS AND FRIEDMAN TO RECONSIDER ORDER ALLOWING SANCTIONS UNDER COUNTS V AND VI Sitting by Designation. INTRODUCTION Following bifurcated trial on liability before the Court, Findings of Fact and Conclusions of Law (“Findings and Conclusions”) were made and entered. Capital Factors, Inc. v. Homeline Corp. (In re General Pl...
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MEMORANDUM BancBoston’s motion for summary judgment to fix “the dollar amount of the nondis-chargeable judgment to be entered against Defendant ... Sikes” raises two issues: (1) Whether the reversal on appeal of this court’s dismissal of the complaint against Sikes at the close of the bank’s proof under (former) Fed.R.Civ.P. 41(b) precludes Sikes *744 from presenting defe...
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MEMORANDUM OPINION REGARDING AMOUNT AND ALLOCATION OF FEES ALLOWED AS SANCTIONS AWARDED TO CAPITAL FACTORS Following trial and judgment on liability, the principal parties settled. Plaintiff Capital Factors, Inc. (“Capital Factors”) then prevailed in its Amended Motion to assess against Paul D. Friedman (“Friedman”), attorney for General Plastics Corporation (“General Plastics”), fees...
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MEMORANDUM OPINION The chapter 7 trustee in the above bankruptcy case has brought an action against defendants Dennis and Marion Donaldson, who were principals of this debtor when in possession under chapter 11, averring a breach of fiduciary duty. According to the trustee, defendants caused debtor’s plan of reorganization to be confirmed under “false pretenses” and then breached thei...
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AMENDED OPINION Mason-McDuffie Mortgage Corporation (“Mason”) is the assignee of a security interest in a house owned by John Jeffrey Peters (“debtor”), a chapter 13 debtor. The debtor filed his chapter 13 petition immediately pri- or to the nonjudicial foreclosure sale of the house by Mason’s predecessor-in-interest. It was later discovered that Mason had been continuing the date of ...
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MEMORANDUM OPINION Before the Court is the Debtor’s Amended Objection (the “Objection”) to Amended Proof of Claim (the “Amended Claim”) filed by Bank of America (“Claimant”). Hearing on the Objection was held on January 12, *13 1995 after which the parties submitted their briefs in support of their respective legal positions. 1 The Objection requests the Court to disallow the Amended Clai...
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ORDER ON MOTION TO RECONSIDER On May 17,1995, the Court held a hearing on American General Finance, Inc.’s (“Creditor”) motion to reconsider the order confirming the debtors’ plan of reorganization entered on May 2, 1995. Appearing before the Court were the debtors’ attorney, the mov-ant’s attorney, and the standing trustee. At the hearing, the Court determined that the motion was to be treat...
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DECISION ON MOTION FOR SUMMARY JUDGMENT ON LeBLANC, SANTIAGO and NICHOLS CLAIMS Certain claims relating to alleged liability for lead paint injury have been filed in these consolidated bankruptcy cases. Eagle-Picher Industries, Inc., hereafter referred to as “debtor,” has filed a motion for summary judgment against these claimants. Involved are claims 4350, 4351, and 4352, filed by Richard Van Nos...
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OPINION I The Chapter 7 trustee appeals from a summary judgment in a preference action. We REVERSE. II FACTS National Lumber & Supply, Inc. (“Debt- or”) was in the retail hardware and home improvement business. The Installers installed garage doors for National Lumber’s customers. Orange Commercial Credit (“Orange”) was in the business of purchasing or factoring a...
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MEMORANDUM DECISION THIS MATTER came before the Court on December 12, 1994 and January 9, 1995 for trial. Plaintiff, Irving E. Gennet, the bankruptcy trustee for Harold Levy, the debtor (“Plaintiff’) in the referenced bankruptcy proceeding, commenced this adversary proceeding on December 17, 1993. The Defendant Sally Docktor (“Defendant”) answered, and also filed a Third Party Complai...
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ORDER RE OBJECTION TO CONFIRMATION BY FORD MOTOR CREDIT COMPANY Creditor Ford Motor Credit Company (“FMCC”) filed an objection to confirmation of debtor’s Chapter 13 plan, alleging that it has a valid judgment lien on debtors’ real property and that the plan improperly lists it as an unsecured creditor. Debtor disputes the validity of the lien. This court has jurisdiction of this matter pursuant ...
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*540DECISION and ORDER RE CONFIRMATION Debtor in this single asset Chapter 11 real estate case filed a disclosure statement and plan. This case was set on a fast track by the court, and hearing on the disclosure statement and on confirmation were scheduled for the same time. Objections to the plan were lodged by Beal Bank S.S.D., the first mortgagee, and also by Clough Creek Limited (“Limited”), h...
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MEMORANDUM DECISION GRANTING MOTION FOR ANNULMENT OF THE AUTOMATIC STAY Before me are three motions, in order of service and filing: (1) the secured creditor’s motion for annulment of the automatic stay pursuant to 11 U.S.C. § 362(d) and Bankruptcy Rule 4001 so as to validate the foreclosure sale held on June 20, 1994, (2) the Debtor’s motion pursuant to 11 U.S.C. § 1112(b) to dismiss the Cha...
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MEMORANDUM OPINION This opinion addresses the issue of whether a debtor in possession is bound by the two-year statute of limitations period contained in 11 U.S.C. § 546 of the Bankruptcy Code. Numerous courts have addressed this issue with conflicting results. Taking into consideration the plain language of the Bankruptcy Code, the Bankruptcy Reform Act of 1994, and the arguments made in...
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MEMORANDUM This case is before the court to consider confirmation of Debtors’ Chapter 13 Plan. The objecting creditors assert that debtors’ previous Chapter 7 discharge precludes confirmation and that this Chapter 13 ease should be dismissed for lack of good faith. The plan is not confirmed. *350 FINDINGS OF FACT The debtors, Joseph and Lisa Strauss, filed a Chapter 7 bankruptcy case ...
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MEMORANDUM Before the court is the Adversary Proceeding to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523(a)(2)(A). Mer-*346eantile Bank asserts that the charges made by the debtor on his Mercantile Bank credit card account should be determined nondis-chargeable because the debtor knew or should have known at the time the charges were made that he could not repay the amounts char...
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OPINION Chapter 13 debtors, William and Debra Bequette, failed to pay their 1989 real estate taxes on two parcels of property owned by them in St. Clair County, Illinois. One parcel was improved with a mobile home, while the adjacent parcel was vacant. The mobile home was subject to a lien in favor of Mercantile Bank of St. Louis N.A. (“Bank”), which was perfected by notation on the m...
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MEMORANDUM This ease is before the court to consider confirmation of the debtor’s Amended Chapter 13 Plan, and an objection to confirmation. I conclude that the plan was not filed in good faith, and that it does not provide to pay unsecured creditors as much as they would be paid in a Chapter 7 case. The plan is not confirmed. FINDINGS OF FACT The objecting creditors are shareholders in c...
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MEMORANDUM DECISION DENYING MOTION FOR LEAVE TO COMMENCE AN ACTION ON BEHALF OF THE DEBTOR This is a motion by three creditors, Gold Mechanical Contractors, Inc., Sullivan Sprin *431 kler Company, Inc. and G.C. Monaco Electric, Inc. (the “Creditors”), for an order authorizing the Creditors to commence an action on behalf of the Debtor against Lloyds Bank P.L.C. and Hokkai...
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DECISION and ORDER ON APPLICATION TO REOPEN Pursuant to 11 U.S.C. § 350(a) this Chapter 7 bankruptcy case was closed February 17, 1994. Debtors have now, pursuant to § 350(b), moved to reopen the ease. This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1384(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § 157(b)(2)(...
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MEMORANDUM OPINION I. ISSUE Does a sub-subcontractor on a federal construction project subject to the Miller Act hold an equitable interest in the remaining contract balance now held by the chapter 7 trustee in bankruptcy? II. PROCEDURAL BACKGROUND On May 3, 1993, RAH Development Company, Inc., “Debtor”, filed its voluntary petition for relief under chapter 11 of the Ba...
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ORDER On October 16, 1991, George F. and Marie Louise Baldwin (Debtors) filed a voluntary petition for relief under the provisions of Chapter 11 of the United States Bankruptcy Code. Daniel K. Schieffler (Schieffler) was appointed Chapter 11 trustee on February 6, 1992, and on July 15, 1994, the case was converted to Chapter 7 and Schieffler continued as trustee. On March 23, 1993, Schieffler f...
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ORDER In this Chapter 7 case, the Debtor has filed a “Motion and Brief to Alter or Amend Judgment” entered March 14, 1995, on the Debtor’s motion to avoid the judgment lien of Citizens First National Bank (Bank). In the March 14, 1995, holding, the Court, applying 11 U.S.C. § 522(f) as amended by the Bankruptcy Reform Act of 1994, P.L. 103-394, held, in part, that under Montana’s exemptio...
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ORDER ON MOTION FOR AWARD OF FEES AND COSTS FILED BY MARIO AMICI THIS IS a Chapter 7 case and the matter under consideration is a Motion For Award of Fees and Costs Filed by Mario Amici (Debtor) in connection with an adversary proceeding commenced by the Debtor against the United States of America (the United States). In his Motion, the Debtor contends that he is entitled pursuant to 26 U.S.C. Sec...
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ORDER ON MOTION TO DISMISS This matter came on regularly for hearing on the motion to dismiss brought by the Internal Revenue Service. The Internal Revenue Service contends that the debtors have filed this proceeding in Chapter 11 in bad faith. Specifically, the Internal Revenue Service contends that the debtors, after suffering an adverse judgment in the Tax Court, sought the protection of the...
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ORDER THIS MATTER comes before the Court upon a Motion for Stay pending appeal filed by the Defendant pursuant to Rule 8005 of the Federal Rules of Bankruptcy Procedure. This Court previously denied the Defendant’s motion for a jury trial in connection with the within adversary proceeding which seeks a determination that the debt to the Plaintiffs is non-dischargeable pursuant to 11 U.S.C...
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ORDER THIS MATTER came before the Court for trial on May 8, 1995 upon the Complaint of Plaintiff pursuant to 11 U.S.C. Section 727. 1 Plaintiff is a creditor of the estate of the Debtor and has brought the within adversary proceeding to deny the discharge of the Debtor on the grounds that he has: (1) transferred, removed, or concealed property with the intent to defraud credito...
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ORDER THIS MATTER comes before the Court in this reopened case by way of an adversary proceeding filed by the Plaintiff (also referred to herein as “Debtor” or ‘Wife”) which seeks a determination of dischargeability of obligations due the Defendant (also referred to herein as “Husband”), the Debt- or’s former husband, an injunction against the Defendant to prohibit his modification of the...
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MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The debtor, David Lee Conner, initiated this adversary proceeding on January 24, 1995, seeking a determination that his federal tax obligations for 1986 through 1990 are not excepted from discharge under 11 *218U.S.C.A. § 523(a)(1) (West 1993 & Supp. 1995). The Defendant, Internal Revenue Service of the Department of the Treasury of the Unit...
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MEMORANDUM OPINION The various Defendants’ Motions to Dismiss were heard on April 13, 1995. The Trustee, Henry Seals, filed a series of adversaries to recover pre-petition transfers to numerous Defendants from Fort Worth Campbell Associates, Inc., the Debtor. Many of the Defendants in several of the adversaries filed motions to dismiss alleging that the 11 U.S.C. § 546 statute of limitations fo...
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ORDER On February 13 and 14, 1995, the above-captioned matter came on for trial pursuant to assignment. Debtors/Plaintiffs Donald John Pierce and Mary Ann Pierce were represented by Steve Swift. Attorney Tracy Martinez represented Defendant United States of America on behalf of the Internal Revenue Service (“IRS”). After presentation of evidence and arguments of counsel, the Court took the ma...
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OPINION A INTRODUCTION Society Hill Savings and Loan Association (“the Movant”) seeks to reopen the instant, fifth bankruptcy case filed by PATRICIA WELLS MADISON (“the Debtor”) for the purpose of revising the dismissal order in this case to invalidate a new sixth filing. The sole basis of the Motion is an agreement (“the Agreement”) restricting further refil-ings made by the...
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ORDER This matter is before the Court on the complaint of the Plaintiffs/Debtors, the Matthews (the “Debtors,” the “Plaintiffs” or the “Matthews”), against the United States (the “Internal Revenue Service” or the “IRS”), 1 for civil contempt, for damages for violation of the automatic stay under 11 U.S.C. § 362(h), for violation of the discharge injunction under 11 U.S.C. §...
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MEMORANDUM OPINION This adversary proceeding was tried on March 3,1995 on the consolidated complaints of First Union National Bank of North Carolina (“First Union”) and Robert E. Tillery (“Tillery”) objecting to the debtor’s discharge under various subsections of Section 727 of the Code, 11 U.S.C. § 727. At the conclusion of the trial, the court found in favor of the debtor/defendant ...
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ORDER ON MOTION TO AVOID LIEN On May 2, 1995, the debtors filed their voluntary petition under Chapter 7 Bankruptcy Code. Thereafter, on June 12, 1995 the debtors filed their motion to avoid hen impairing exemption against People’s State Bank (hereafter “Bank”) pursuant to the provision of 11 U.S.C. Section 522(f). On June 28, 1995 Peoples State Bank filed its response to debtors’ motion to a...
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MEMORANDUM OPINION This matter is before the Court on the Objection to Claim filed herein by the debtors on March 29, 1995. They object to the secured claim of creditor Fifth Third Bank (“Fifth Third”). Fifth Third filed a Response to Objection on April 17, 1995, and the parties filed Stipulations on May 19, 1995. An Order submitting the matter for decision was entered on June 13, 1995. The Stip...
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OPINION RE MOTION TO REOPEN BANKRUPTCY CASE Debtor has moved to reopen her “no-asset” Chapter 7 case so that she can seek an order holding a prepetition creditor in contempt for violating the discharge injunction of 11 U.S.C. § 524. 1 This is the debtor’s second motion to reopen this case. The purpose of the first motion was to amend the schedules to add an omitted creditor who...
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OPINION Before the Court is the Motion of the Debtor, Jeanmarie Rusnak (the “Debtor”), seeking to hold the United States Office of Personnel Management and the Secretary of the United States Department of Health and Human Services (collectively “HHS” or the “Secretary”) in contempt for violation of the automatic stay (the “Motion”). The Secretary filed an Answer opposing the Motion. A...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEBTORS’ MOTION FOR CIVIL CONTEMPT FINDING This matter is before the Court upon a Notice of Hearing and Debtors’ Emergency Motion for Order of Civil Contempt, Damages, and Injunctive Relief against a creditor, Stanley Stann (“Stann”). Following a hearing and consideration of evidence, the Court now makes and enters the following Findings of F...
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*855 DECISION ON REAFFIRMATION AGREEMENTS Debtors Leslie and Loralee Noble and Pamela Rike-Bailey, unrepresented in their bankruptcy cases, have signed reaffirmation agreements with GreenTree Financial Corporation (“GreenTree”) and General Motors Acceptance Corporation (“GMAC”), respectively. The agreements were filed and set for approval hearings, and the Debtors appeared. ...
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ORDER ALLOWING FEES After notice to all creditors, this Court has examined all pending fee applications filed in this ease. The Court has considered these applications and finds that the following allowances are reasonable. The Court finds that reasonable compensation for Soneet Kapila, Trustee, (“Trustee”) is $1,417.06 plus expenses of $1.85. The Court finds that reasonable compensation for So...
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MEMORANDUM OF DECISION Pursuant to 11 U.S.C. § 365, Ford Motor Credit Company (“FMCC”) moves to require debtors, Earl M. Bumgardner and Helen E. Bumgardner, to assume or reject an unexpired lease. The debtors contend the agreement is a sale and security transaction, not a lease. THE AGREEMENT The debtors and Wendle Ford/Nissan/Isuzu Sales, Inc. (“Wendle Ford”) entered into t...
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*416 MEMORANDUM OF DECISION ON MOTION FOR RELIEF FROM STAY BY THE CITY OF BRIDGEPORT This Memorandum of Decision contains findings of fact and conclusions of law pursuant to Rule 7052 Fed.R.Bankr.P., made applicable to this contested matter by Rule 9014 Fed.R.Bankr.P. It supplements the findings and conclusions stated and recorded in open court at the hearings conducted on June 7...
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MEMORANDUM DECISION ON OBJECTION TO CLAIM FOR SANCTIONS Pursuant to a cross-motion filed in response to Anderson Kill Olick & Oshinsky’s (“AKOO”) motion to be relieved as counsel herein, WT Associates (“WT”) seeks to sanction AKOO, Roy Babitt, Esq., (“Babitt”), an AKOO partner, and Lawrence Hartman, Esq., (“Hartman”), a former AKOO partner, pursuant to Bankruptcy Rule 9011, 28 U.S.C. ...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN I. The matter before the court is an objection by the City of Hartford (the City) to a provision in the Second Amended Chapter 13 Plan (the plan) of David K. Fraser (the debtor) which deals with real estate tax liens covering the debtor’s commercial property located at 365-367 Albany Avenue, Hartford, Connecticut (t...
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DECISION ON DEBTOR’S MOTION TO DISMISS This matter comes before the court on a motion by the debtor, Rose Haiper-Elder, to dismiss her chapter 13 case in the face of a motion to convert filed by a creditor, Robert Lee Elder (“Elder”). Also filing separate motions to dismiss the debtor’s case are a creditor, Mershon, Sawyer, Johnston, Dun-wody & Cole (“Mershon Sawyer”), and the Chapter...
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MEMORANDUM OPINION This matter comes before the Court on Motion for Reconsideration filed by Coffee County Bank (“Movant”). A hearing was originally held in this matter on April 25, 1995. This is a core matter under 28 U.S.C. § 157(b)(2)(E). For the following reasons, the Court will deny reconsideration of its previous order. These findings of fact and conclusions of law are entered pursuant to...
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OPINION Before the court are defendants’ motions for more definite statement filed pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, which is made applicable to adversary proceedings in bankruptcy cases by Rule 7012 of the Bankruptcy Rules. Defendants assert that the complaints are so vague and ambiguous that it is unreasonable to require them to file responsive pleadings. In parti...
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ORDER ON MOTION FOR RECONSIDERATION This adversary proceeding was commenced on July 22, 1993. It was allowed to languish for many months, apparently because of ongoing settlement negotiations, which were ultimately only partially fruitful. The issues before the court at this time arise out of an amended complaint filed by plaintiff, with leave of court, on September 30, 1994. In that complaint,...
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The question presented to the Court is whether and to what extent a Chapter 7 debtor is subrogated to the rights of a judgment hen creditor under 11 U.S.C. § 522(f)(1) and § 522(i)(2), for purposes of the debtor’s subsequent effort to obtain an order for the Trustee to abandon the homestead under § 554(a). Here, the avoided judgment hen was a $125,000 hen (of a value of zero at the relevant point ...
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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 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 Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 24...
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MEMORANDUM OPINION 1. Introduction This is a motion brought by a debtor’s former landlord to compel the debtor’s payment, in compliance with § 365(d)(3) of the bankruptcy code (11 U.S.C. § 365(d)(3)), of real estate taxes that accrued pre-petition but came due post-petition and pre-rejection of the lease. For the foregoing reasons, the motion is denied. This Court has jurisd...
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MEMORANDUM OPINION Came on for hearing the 19th day of July, 1995, the EPA’s Motion to Dismiss for Lack of Jurisdiction as well as motions for summary judgment filed by both parties. Counsel for the Plaintiff and Defendant appeared *513 and argued the Motion to Dismiss. Because the Court has determined that the Motion to Dismiss should be granted, the Court need not rule on the motions for ...
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MEMORANDUM OF OPINION Plaintiff filed this adversary proceeding to determine dischargeability of loans which were used to finance his son’s college education. He acknowledges that educational loans are generally nondischargeable under section 523(a)(8) but asserts that this exception to discharge is not applicable in this case for two reasons — first, because the exception to discharge is...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on a motion by the Internal Revenue Service (“IRS”) seeking summary judgment in the adversary proceeding commenced by Robert A and Elaine K. Chaffee (“Debtors”). Oral argument was heard at a regular motion term of the Court in Syracuse, New York, on March 7,1995. The parties were afforded an opp...
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MEMORANDUM AND ORDER ON DEBTOR’S AMENDED MOTIONS PURSUANT TO 11 U.S.C. § 506(a) AND (d) The debtor, Ana Borges, seeks to invoke the equitable doctrine of marshaling 1 in connection with two motions under § 506(a) so as to avoid a senior lien and then apply § 551 to preserve the equity for the benefit of the estate. For the reasons that follow, I conclude that marshaling may not...
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OPINION GRANTING DEBTOR’S MOTION FOR SUMMARY JUDGMENT The. debtor brought this preference action pursuant to 11 U.S.C. § 547(b). 1 This matter is now before the Court on a motion for summary judgment filed by the debtor. Following review of the briefs, the Court holds that the debtor is entitled to summary judgment as a matter of law. I. The parties entered into a settlement agreement a...
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SUPPLEMENTAL OPINION This matter is before the Court for a determination of whether an extension of time to file a complaint objecting to discharge applies to all parties. Following oral argument, the Court determined that the extension applied only to the movant, the trustee. This opinion supplements an opinion given in open court on May 30, 1995. I. The debtors filed their chapter 7 pet...
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ORDER Before the Court is Debtors’ Motion to Correct for Breach of Contract and Breach of 11 U.S.C. § 525 by Creditor PHH U.S. Mortgage Corporation. A hearing was held on May 19,1995 and Debtors were allowed to file supplementary pleadings in support of their motion. After reviewing the applicable law, the Court concludes that Debtors’ Motion to Correct for Breach of Contract and Brea...
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*641 Decision on Motion Seeking Contempt for Failure to Obey Subpoena Plaintiff, First Nationwide Bank, moves pursuant to Rule 45(b)(1) of the Federal Rules of Civil Procedure (hereinafter, “Rule 45”), Fed.R.Bankr.P. 9016, 11 U.S.C. § 105 and the All Writs Act, 28 U.S.C. § 1651(a), to hold Robert Wolf (hereinafter, ‘Wolf’), a non-party to this adversary proceeding, in contempt or...
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OPINION A INTRODUCTION Before this court is a Motion filed by MALL AT ONE ASSOCIATES, L.P. (“the Debtor”), at filing the owner of a single realty asset, a shopping mall located at Roosevelt Boulevard and Grant Avenue in Philadelphia (“the Mall”). The Motion appears to be presently confined to a request for reimbursement of not only considerable counsel fees of the Debtor but ...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT FACTS In August of 1993, a judgment was entered against the plaintiff/debtor by the Chelan County District Court for unpaid traffic fines in the amount of $623.20. The debtor failed to satisfy the judgment, and it was assigned to the defendant for collection. This bankruptcy was filed on April 13, 1994, and the Discharge Orde...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court by virtue of an Order to Show Cause dated March 24,1995, obtained by Plaintiffs Fourth Branch Associates (“Debtor”), Key Trust Company as indenture trustee (“Key Trust”), and Teachers Insurance and Annuity Association of America (“TIAA”) for entry of summary judgment on shortened time pu...
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DECISION ON THE TRAVELERS’ MOTION TO EXTEND ITS TIME TO APPEAL PURSUANT TO BANKRUPTCY RULE 8002(C) I. INTRODUCTION Before me 1 , is The Travelers Companies’ (“Travelers”) motion, 2 brought on by Order to Show Cause, pursuant to Fed.R.Bankr.P. 8002(c), to extend the time to appeal The Hon. Francis G. Conrad’s (“Judge Conrad”) order denying Travelers’ “Motion for Abstention Pursuant to 28...
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MEMORANDUM ORDER SUSTAINING DEBTOR’S LIMITED OBJECTION TO CLAIM NO. 19 The above-entitled matter came on for hearing before the undersigned on the 5th day of April, 1995 on an objection to Claim No. 19 filed by The Prudential Insurance Company of America (“Prudential”). Appearances were as follows: Michael Meyer for the debtor, Robert Johnson (“Debtor”); and Jacqueline Layton and Rona...
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MEMORANDUM OPINION The matter before the court is an adversary action to determine the dischargeability of debt under 11 U.S.C. § 523(a)(2)(B). The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). The action arises from a home improvement loan Debtors obtained from PNC Bank, N.A. (PNC), in July, 1993. PNC appro...
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AMENDED * MEMORANDUM DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT CAME ON for consideration the foregoing matter. Fairchild Aircraft Incorporated (“FAI”) filed its Complaint for Declaratory and Injunctive Relief in the bankruptcy case of Fairchild Aircraft Corporation (“FAC”). Defendants moved for dismissal for lack of subject matter jurisdiction and failure to state a cause ...
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DECISION AND ORDER ON MOTION TO TRANSFER VENUE OR TO DISMISS CASE CAME ON for consideration the foregoing matter. The New Mexico Department of Revenue and Taxation moves to transfer venue to the District of New Mexico, or in the alternative, to have this case dismissed for improper venue. Movant asks this court to reverse its earlier decision in In re Lazaro, 128 B.R. 168 (Bankr.W.D.Tex.1991), ...
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AMENDED 1 DECISION AND ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER CAME ON for hearing plaintiffs application for temporary restraining order. Plaintiff sought to enjoin the joinder, amendment, intervention or other form of pleading by any additional creditor to join in the involuntary petition, due to the alleged bad faith of the petitioning creditors, and fu...
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OPINION The Chapter 7 trustee filed this adversary proceeding to recover property held by a limited partnership formed by debtor, Jacqueline Smith, and her brother, Lawrence Prokopf. Count I of the trustee’s amended complaint seeks to avoid as a fraudulent conveyance the debtor’s transfer of property to the limited partnership, known as the Prok- *289 opf Family Partnersh...
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MEMORANDUM OPINION This matter came before the Court on June 27, 1995, on the Complaint of the Plaintiff-Creditor, Kathleen M. Hill, to Determine the Dischargeability of a Debt. The Plaintiff is represented by Attorney J.F. Heckinger. The Defendant-Debtor, Lawrence M. Hill, is represented by Attorney Jeffry A. Dahlberg. BACKGROUND The Debtor filed for voluntary relief un...
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MEMORANDUM DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT CAME ON for consideration the foregoing matter. John Patrick Lowe, the chapter seven trustee (“Trustee”), has brought this adversary proceeding to avoid postpetition transfers of property of the estate under section 549 of the Bankruptcy Code and for recovery of property under section 550 from Phillip A. Yochem, Gray Realty, Brown ...
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ORDER OVERRULING DEBTOR’S OBJECTION TO CLAIM OF CASH YOUR CHECK, INC. On June 1, 1995, the Court conducted a hearing on the Debtor’s objection to the claim of Cash Your Check, Inc. (“CYC”). For the reasons that follow, the Debtor’s objection is overruled and the claim will be allowed as filed. BACKGROUND The Debtor is a corporation engaged in the manufacture of children’s clothing, and has sev...
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AVOIDANCE OF UNSECURED NON-CONSENSUAL LIEN ON DEBTOR’S RESIDENCE PURSUANT TO 11 U.S.C. § 506(a) and (d) This matter is before the Court pursuant to an adversary proceeding commenced by Dewey H. Howard (the “Plaintiff”), seeking to avoid the non-consensual judicial lien held by National Westminster Bank USA (the “Defendant”) on the Plaintiffs residence, pursuant to 11 U.S.C. Sections 506(a) and ...
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MEMORANDUM OPINION ON PETERSON BANK’S MOTION TO MODIFY STAY This Memorandum Opinion follows a hearing held on Motion of Peterson Bank to modify the automatic stay under Section 362 of the Bankruptcy Code, 11 U.S.C. § 362. The Motion seeks leave to proceed with sale of Debtors’ residence pursuant to a pre-peti *51 tion Judgment for Foreclosure entered in an Illinois state ...
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MEMORANDUM The trial of this Adversary Proceeding was commenced and concluded on March 27, 1995. The parties were granted additional time to submit memoranda of law. This Memorandum and related Order are entered upon a consideration of the record as a whole. 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 ...
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ORDER ON OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS CASE came on for hearing on the Objection to Claim of Internal Revenue Service filed by Arno J. Bertelt (the “Debtor”) and the Response to Objection to Claim filed by the United States of America. The Internal Revenue Service (“IRS”) filed a proof of claim in the amount of $39,736.96 for unpaid taxes and penalties assessed again...
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ORDER The trial of the motion of Ogden Modulars, Inc. (“Chapter 11 Debtor”) for contempt and sanctions against Curt Ogden and Curt Ogden Equipment Company (“Respondents”) was conducted on July 12 and 13,1995. The matter was thereafter submitted to the Court. This Order is entered on a consideration of the record as a whole. This is a core proceeding pursuant to Section 157(b)(2)(A) of Title...
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OPINION On August 11,1993 Glenn and Karen Lewis (Debtors) entered into a “SmartBuy” contract with General Motors Acceptance Corporation (“GMAC”) 1 to acquire a 1993 Geo automobile. The contract provides for the Debtors to pay GMAC a $5,350 down payment and then $363.23 monthly for the next 23 months. The Debtors are also responsible for maintenance and insurance on the *...
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*851 ORDER ON BARNETT’S MOTION FOR RELIEF FROM STAY OR FOR ADEQUATE PROTECTION THIS IS a Chapter 13 case filed by Norman B. and Margo Jean Hart (the “Debtors”). Barnett Banks, Inc., Dealer Financial Services, West Central Region, as attorney-in-fact for Barnett Bank of Tampa assignee of Barnett Banks, Inc. (“Barnett”), has filed a Motion for Relief from the Automatic Stay asserting that the s...
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ORDER ON UNITED STATES TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE PURSUANT TO 11 U.S.C. § 707(b) THIS CASE came on for hearing on the United States Trustee’s Motion to Dismiss Chapter 7 Case Pursuant to 11 U.S.C. § 707(b). In the Motion, the United States Trustee (the “Trustee”) requests that this Chapter 7 Case be dismissed pursuant to § 707(b) because granting relief would be a substant...
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MEMORANDUM OPINION ON MOTION OF PLAINTIFF SCHWINN PLAN COMMITTEE TO STRIKE DEFENDANT BETTY CAMPBELL’S DEMAND FOR JURY TRIAL This Adversary proceeding was filed by the Schwinn Plan Committee (“Plaintiff’ or “Committee”) pursuant to the confirmed liquidating Plan of Schwinn Bicycle Company and related companies (collectively “Schwinn” or “Debtor”), under Chapter 11 of the Bankruptcy Cod...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Richard J. McCord, the Chapter 7 Trustee (“Trustee” or “Plaintiff”) of Lan Yik Foods Corporation (“Debtor”) initiated this adversary proceeding by the filing of a complaint to recover alleged preferential payments pursuant to section 547(b) of the Bankruptcy *106 Code. 1 According to the complaint, payments in the aggregate a...
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OPINION OVERVIEW Debtor claimed exemptions for full equity in a vehicle and residence that facially exceeded the statutory exemptions. The bankruptcy trustee did not file an objection to the claimed exemptions within the statutorily prescribed period. Prior to the expiration of the time for the trustee to object to the claimed exemptions, the trustee sold the vehicle and paid Deb...
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Decision Geary’s Bottled Liquors Co., Inc. (“Debt- or”) is a Massachusetts corporation doing business in the Town of Avon, Massachusetts. It filed a Chapter 11 proceeding in this Court on October 12, 1994. Exercising the powers of a trustee under 11 U.S.C. § 544, as authorized by 11 U.S.C. § 1107, Debtor subsequently brought this adversary proceeding to determine the validity and perfection o...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO EXEMPTIONS The debtor commenced this Chapter 7 case on December 28,1994. The Trustee, William T. Hendon, timely filed an Objection to Exemptions (Objection) on February 2, 1995, which was amended April 19, 1995, asserting that two annuity contracts and three life insurance policies claimed as exempt by the debtor are not “qualified” properties unde...
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OPINION The matter before the Court is the motion by Den Norske Bank (“Bank”) to have an exemption claimed by debtor Jack I. Schwartz (“Debtor”) declared invalid [hereinafter referred to as the “Exemption Motion”]. The following constitutes this Court’s findings of fact and conclusions of law. FACTS On March 7, 1994, the Debtor filed a chapter 7 voluntary petition with a...
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MEMORANDUM OPINION This matter came before the Court on January 18, 1995, on the Motion of Dean L. Johnson (“Johnson”) to Modify Stay. The Debtors, Dennis L. and Roline M. Milne are represented by Attorney William L. Baisley. Johnson is represented by Attorney G. Michael Scheurich. 1 FACTS There is no dispute as to the facts of the case. The Debtors failed to pay...
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OPINION The matter before the Court is to determine damages in the instant adversary proceeding. The following constitutes the Court’s findings of fact and conclusions of law. Facts 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. On October 24, 1994, the Court issued a writte...
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MEMORANDUM DECISION ON DEBTOR’S MOTION TO ASSUME LEASE Embers 86th Street, Inc. (“debtor”) operates a cafeteria-style restaurant in rented space (defined below as the “Premises”) located at 206 E. 86th Street, New York, New York (the 86th Street Building”) which it occupies pursuant to an agreement dated July 10, 1992 (the “Sublease”). S & M Enterprises (“S & M”), as sublessor, has mo...
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MEMORANDUM OF DECISION Pending for decision are the following motions of West One Bank of Idaho: (1) motion to convert the case to a case under Chapter 7; and (2) motion for relief from the section 362 automatic stay. BACKGROUND The bulk of debtor, Margaret Lindsey’s, estate consists of a parcel of improved real property and several contiguous pieces of undeveloped property ...
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ORDER This matter was initiated by the filing of Trustee’s Application to Pay Chapter 7 Administrative Expenses; Application to Determine, Disallow and Partially Pay Chapter 11 Administrative Expenses and subsequent Objections thereto by Pension Benefit Guaranty Corporation [“PBGC”]. Upon request of the parties, the Court granted the parties leave to brief the issues related to the st...
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OPINION Debtor brought a § 547(b) preference action against a corporation to recover funds already paid. The corporation objected to personal jurisdiction. The debtor argued that the creditor corporation consented to jurisdiction when it filed proofs of claim. The bankruptcy court agreed, denying the creditor’s summary judgment motion based on jurisdiction, and granting debtor’s summa...
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MEMORANDUM OPINION AND ORDER This matter came on for trial on December 6,1994, upon Mercantile Bank’s Complaint to Determine Dischargeability of Debt. Plaintiff, Mercantile Bank appeared by and through counsel, Drew Frackowiak. Defendant/debtor Frederick Hoyle (“Hoyle”) appeared by and through counsel, Donald B. Clark. JURISDICTION The Court has jurisdiction over this proceeding. 28 U.S...
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OPINION I The bankruptcy court ruled that social security disability payments are included in determining disposable income which must be paid to creditors under a Chapter 13 plan. The court denied plan confirmation and dismissed the debtors’ bankruptcy case. We AFFIRM. II FACTS Ken and Mary Hagel (“Debtors”) filed a Chapter 18 bankruptcy petition and proposed pla...
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OPINION Before the Court is the Objection of the Chapter 7 Trustee to Debtor’s Exemptions. The Trustee objects to Debtor’s listing as exempt under 42 Pa.C.S.A. § 8124(b)(l)(ix) all monies contained in a certain Individual Retirement Account (the “IRA”). The parties agreed that this matter may be decided on the pleadings without oral argument. *211 BACKGROUND. Pursuant to a Stipulation...
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This matter comes before the Court upon the motion of Frederick A. Seltzer (the “Debtor”) seeking an order pursuant to section 522(f) of the Bankruptcy Code, 1 voiding 2 certain judgment liens against property owned by him, on the grounds that said liens impair the homestead exemption to which he is entitled under section 5206(a) of the New York Civil Practice Law and Rule...
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MEMORANDUM OPINION The issue presented is whether the bankruptcy court has jurisdiction to determine whether the debtor should receive a tax refund or credit for pre-petition and post-petition property taxes which have been paid notwithstanding the debtor and/or the trustee’s 1 failure to comply with state procedural requirements regarding filing a refund request. The parties agree that the...
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OPINION This appeal arises from the granting of a motion for summary judgment in favor of the chapter 7 1 trustee based upon a finding that an abstract of judgment which was recorded 91 days prior to the debtor’s bankruptcy was actually within the 90 day statutory preference period due to an enlargement of that period by Rule 9006(a). The judgment creditor appeals. We REVERSE and REMAND. ...
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MEMORANDUM OPINION Maryrose Arsenault, the debtor in this case, filed this adversary proceeding to void the second mortgage loan owed to the defendant due to violation of various New Hampshire consumer protection statutes. The Court ruled on some of the issues on cross motions for summary judgment (Court Doc. No. 20) and the remaining issues after a one day trial. (Court Doc. No. 24). At the co...
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ORDER ON SECOND SERIES OF CROSS MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding is again before the Court on cross motions for summary judgment. A prior Order entered on February 16, 1995 (Adv. Court Doc. no. 18.) disposed of prior cross motions for summary judgment on the attempt by the plaintiff to void the defendants’ attachment lien on the debtors’ personal property for failure to ...
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MEMORANDUM OF DECISION Plaintiff Federal Home Loan Mortgage Corp. (“Freddie Mae”) filed a complaint against the Defendant Robert O. Potter (“Potter”) seeking a determination of the non-dischargeability of a $4.9 million fraud judgment (“fraud judgment”) that was previously entered in Freddie Mac’s favor by the District Court. Freddie Mac filed a Motion for Summary Judgment contending that...
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MEMORANDUM OF DECISION The Official Committee of Unsecured Creditors (“Committee)” filed an adversary action on behalf of the estate against the Debtor’s former lessor, Riviera Medical De *964 velopment Company (“Riviera”), seeking the recovery of preferential transfers and damages for violation of the automatic stay. Riviera initiated a third party indemnity action against t...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiff, RITA ANN PATTERSON, seeking the turnover of one 1984 Cadillac Seville. The trial in this matter was held on the 26th day of July, 1995. The parties entered into an agreement, signed and dated September 22, 1994. Under the agreement, the defendant agreed to loan $3,662.00 to the debtor for a sixty day perio...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Came before the Court objections to the Debtor’s exemptions at a hearing on May 19, 1995. Although several objections to the Debtor’s exemptions were filed, counsel for the Debtor represented to the Court that only one objection remains for determination by the Court — the objection of the Resolution Trust Corporation (“RTC”), as Receiver for Me...
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ORDER GRANTING DEBTOR’S MOTION FOR AUTHORITY TO INCUR SECURED DEBT WITH SUPERPRIORITY STATUS PURSUANT TO 11 U.S.C. § 361p(d)(l) This Chapter 11 case came before the Court upon the debtor’s motion for authority to incur secured debt with superpriority status. Notice of the proposed financing was circulated to all creditors and parties in interest on May 13, 1995 and, pursuant to Local ...
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MEMORANDUM This matter comes before the Court on the Debtor’s Request For Creditor, Swope Automotive To Return Property Essential To The Debtor’s Reorganization Plan. The Debtor is seeking the return of a vehicle repossessed prepetition. The pleading filed by the debt- or, however, is procedurally defective. Bankruptcy Rule 7001(1) provides that an adversary proceeding is a proceeding to recover...
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*15 DECISION ON ENTITLEMENT OF PROFESSIONALS TO INTEREST ON HELD BACK FEES At issue is whether three retained firms (“Movants”) are entitled to be paid interest on the portion of fees that this Court directed to be withheld at interim fee hearings (the “Holdbacks”) pending a final hearing to approve the overall fees and disbursements in this case. The Movants essentially argue th...
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DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT Sheldon J. Aboff, a former employee of various U.S. businesses included in the worldwide holdings of the late Robert Maxwell and his family, seeks summary judg*38ment1 on his two $35 million proofs of claim. The claims are asserted against Macmillan, Inc. (“Macmillan”) and MCC/GAO, Inc. (formerly known as Official Airlines Guide, Inc. and referred ...
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MEMORANDUM OPINION The principal question we address is whether a secured lender may be surcharged under 11 U.S.C. § 506(c) for the rent the debtor failed to pay to its landlord. The debtor, K & L Lakeland, Inc., is a former automobile dealership that originally filed for bankruptcy under Chapter 11. The dealership was located on property leased from the landlord, Loudoun Leasing Deve...
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MEMORANDUM This is an action by the debtor in possession, Blevins Electric, Inc. (“Blevins”), pursuant to 11 U.S.C. §§ 547 and 550, for the avoidance and recovery of certain alleged preferential transfers made by Blevins to the defendant, First American National Bank (“First American”), within the one year preceding the filing of Blevins’ chapter 11 petition. This adversary proceeding...
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185 B.R. 620 (1995) In the Matter of Willie H. GARRETT, Debtor. GREEN TREE FINANCIAL CORP., Plaintiff, v. Willie H. GARRETT and Harriet A. Garrett, Defendants. Bankruptcy No. 95-41288. Adv. No. 95-40360. United States Bankruptcy Court, N.D. Alabama, Eastern Division. July 31, 1995. *621 S. Keith Eady, Talladega, AL, for defendants/debtor. William Hereford, Birmingham, AL, for plaintiff. ORDER ON...
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MEMORANDUM OF DECISION Submitted for decision on a stipulated record is the trustee’s objection to the debtor’s exemption claim in certain real estate. I conclude that the objection must be sustained *96 because the debtor does not “use” the property “as a residence” as Maine’s exemption statute requires. 1 Background Betty L. Cole (“Cole” or “debtor...
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DECISION ON ADVERSARY COMPLAINT OF CHARLES FERRARO, INDIVIDUALLY AND AS A CORPORATE SHAREHOLDER ON BEHALF OF THE CORPORATION OBJECTING TO THE DISCHARGE-ABILITY OF CERTAIN DEBTS The matter before the Court is an adversary proceeding commenced by Charles Ferraro (the “Plaintiff’) individually and as a shareholder of Advertising Services Plus, Inc. (“Advertising Plus”), objecting to the discharge ...
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OPINION RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF INDEBTEDNESS At a hearing before me on April 3, 1995, I issued an oral bench opinion granting the Plaintiff State Bar of Michigan’s motion for summary judgment. The issue presented was whether costs assessed in a disciplinary action taken by a state bar against an attorney are nondischargeab...
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ORDER Before this Court are several Motions to Dismiss, all of which arise from an adversary proceeding filed by Donald F. Walton, Acting United States Trustee (hereinafter “the Trustee”). Through this main action, the Trustee has sought to disgorge fees paid by Mattie P. Swift (hereinafter “the Debtor”) to Patrick Watts (hereinafter “Watts”) and Will Richey (hereinafter “Richey”) for legal ass...
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MEMORANDUM DECISION GRANTING MOTION FOR SANCTIONS Fourth Federal Savings Bank (“Fourth Federal”), a secured creditor, seeks sanctions against the Debtor (“Spectee”), its president, John Souto (“Souto”), and its counsel, Aaron Gelbwaks (“Gelbwaks”) (collectively, the “Respondents”) pursuant to 11 U.S.C. § 105 and Bankruptcy Rule 9011 and against Gelbwaks pursuant to 28 U.S.C. § 1927 for re...
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OPINION PROCEDURAL BACKGROUND This matter comes before the court as an adversary proceeding to compel defendant ShopRite of Clinton, Inc. (“ShopRite”) to turn over the proceeds of an escrow account pursuant to 11 U.S.C. § 541. At issue in the proceeding is the ownership of the escrow account which was created and funded by ShopRite. Plaintiff/debtor-in-possession Arrow Mill Devel...
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MEMORANDUM This matter was tried on June 8, 1995, at which time the court held that certain obligations imposed upon the debtor in his divorce decree were nondischargeable pursuant to 11 U.S.C. §§ 523(a)(5) and (a)(15). The court reserved for further briefing the question of whether defendant was entitled to an award of attorney fees incurred by her in this proceeding pursuant to T.C.A § 36-5...
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MEMORANDUM OPINION This matter comes before the Court on motions for summary judgment by both the plaintiff and the defendants. In the underlying Complaint, the Trustee seeks to recover funds allegedly paid in error to the defendant professional corporations. This is a core proceeding over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. After a hearing, t...
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*217 MEMORANDUM OPINION These matters come before the Court upon applications seeking compensation for fees and expenses pursuant to 11 U.S.C. § 330. Each application was filed by Barry Strickland & Company, C.P.A. (“Strickland”), as the accountant for the Trustee, Kevin R. Huennekens. These are core proceedings over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1...
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ORDER Before this Court is the Motion to Approve Administrative Expense of Don and Margaret Seay (hereinafter “the Seays”) pursuant to 11 U.S.C. § 503. This matter falls within the subject matter jurisdiction of the Court, see 28 U.S.C. § 157(b)(2)(A), (B), and will be disposed of as provided in the Findings of Fact and Conclusions of Law which follow. Findings of Fact At the time of their ba...
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ORDER GRANTING IN PART AND DENYING IN PART DEBTOR’S MOTION FOR DETERMINATION OF STAY VIOLATION; AND GRANTING IN PART BARNETT’S ORE TENUS MOTION FOR RELIEF FROM STAY On June 27, 1995, the Court heard the Debtor’s Emergency Motion for Order Directing Tina Barnett to Cancel State Court Surrender Hearing as Violation of the Automatic Stay (“Motion for Determination of Stay Violation”). Fo...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT On May 18, 1994, after a jury trial in the 272nd District Court of Brazos County Texas, Kuppusamy Ragupathi and Rohini Ragu-pathi (“Plaintiffs”) obtained a judgment against Darrell Ray Bairrington, Sr. and Jo Ann Bairrington (“Defendants” or “Debtors”). That court concluded that Defendants had violated the Texas Deceptive Trade Practic...
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MEMORANDUM OPINION AND ORDER STRIKING AMENDMENT TO DEBTOR’S SCHEDULE OF PROPERTY CLAIMED AS EXEMPT This Chapter 11 case was converted to Chapter 7 in November 1994 after several unsuccessful attempts by the debtor to reorganize. This opinion considers whether the debtor should now be allowed to amend his schedules to claim property as exempt which he previously scheduled as non-exempt...
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RULING ON MOTION FOR SANCTIONS FOR VIOLATION OF AUTOMATIC STAY I. The matter before the court is the debtor’s motion for sanctions against Citation Mortgage Ltd., Citation Mortgage Corp. (collectively “Citation”), and their attorney, Terrence Russell (Russell) for “violation of the automatic stay and this court’s December 22, 1994, Order.” Debtor’s Motion at 1. Citation and Russe...
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ORDER George A. Eborn (“Eborn”), a judgment creditor of the debtor, brings this adversary proceeding to have his debt declared nondis-chargeable pursuant to § 523(a)(6) of the Bankruptcy Code. This is a core proceeding as that term is defined in to 28 U.S.C. § 157(b)(2)(I), and over which this court has jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(a). This case is before the court on the ...
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BACKGROUND On January 26,1998, three creditors of the debtor, Interco Systems, Inc. (“Interco”), filed an involuntary Chapter 7 petition alleging that Interco was not paying its debts as they became due. Interco interposed an answer, claiming that the indebtedness alleged by each of the petitioning creditors was in dispute, and requested that the petition be dismissed. At a pretrial ...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT THIS IS a confirmed Chapter 11 case and the matter under consideration is a Motion for Partial Summary Judgment filed by Hillsborough Holdings Corporation (HHC), one of the several debtors involved in these procedurally consolidated Chapter 11 cases. The Motion is filed in the above captioned adversary proceeding commenced by the Debtors and involves a...
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*675 RULINGS AND ORDERS ON THREE MOTIONS FOR SUMMARY JUDGMENT I. Before the court are three almost identical motions for summary judgment (the “Motions”) separately filed by the defendant, Adinolfi, O’Brien & Hayes, P.C. (A,O & H), the defendant, Butler, Norris & Gold (B,N & G), and the defendants-debtors, Norman Sylvia and Alison Sylvia (the “Debtors”). The plaintiff, Martin W. Hoffman, Truste...
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RULING ON MOTION TO COMPEL DEBTOR TO REAFFIRM DEBT, REDEEM OR SURRENDER SECURED COLLATERAL I. ISSUE The issue presented by this proceeding is whether Bankruptcy Code § 521(2) 1 permits a Chapter 7 debtor, who is current in his secured automobile loan installments and other loan terms, to retain the exempted automobile, after discharge, without either redeeming...
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MEMORANDUM The issue is whether the Chapter 7 trustee’s status as a judgment lien creditor under 11 U.S.C. § 544(a)(1) defeats an unrecorded deed of trust. The trustee prevails because under Tennessee law an unrecorded deed of trust is null and void as to a judgment hen creditor. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I. In July 1989, the...
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OPINION Before the Court are the motion for relief from order and the motion to amend pleading filed by James and Dorothy Scott. Also before the Court is the motion to dismiss the motion for relief from order filed by Charles Alvin and Joyce Clark Scott. Having reviewed the pleadings and memoranda submitted by counsel for the parties, the Court concludes that the motion to dismiss the motion ...
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OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT This action was filed to determine the validity and priority of the defendants’ lien against the debtor’s real property in Antrim, Michigan. Cross motions for summary judgment were filed and counsel agreed to waive oral argument. Following review of the briefs, the Court concludes that the mortgage note does not meet the statutory requireme...
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ORDER ON PLAINTIFF’S OBJECTIONS TO EXEMPTIONS THIS MATTER came before the Court on February 9, 1995, upon Plaintiff ENTERPRISE FINANCIAL CORP’s (“Plaintiff’ or “Enterprise”) Complaint which seeks a declaration that various assets scheduled as ex *916 empt by the Debtor SAMUEL D. WINN (“Debtor” or “Mr. Winn”) be declared nonexempt and be made available for distribution. ...
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ORDER GRANTING FIRST UNION’S MOTION TO DISMISS THIS MATTER came before the Court on December 15, 1994 for an evidentiary hearing on Creditor First Union’s Motion to Dismiss Petition as Bad Faith Filing, and the Court being fully advised in the premises determines as follows. BACKGROUND Debtor, Dr. S. Robert Davidoff, (hereinafter “Debtor” or “Dr. Davidoff’) is a fifty year old dentist (...
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MEMORANDUM OF OPINION AND ORDER This action comes before the Court on Attorney Ford L. Noble’s Motion for Allowance of Attorney’s Fees, Administrative Expenses, and Client Fees. Attorneys Ford L. Noble and Daniel G. Morris seek reimbursement for themselves for legal fees amounting to $10,000.00 and administrative expenses for Debtor Frank Francosky in the amount of $1,538.75. Attorneys Noble and...
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OPINION AND ORDER DENYING MOTION FOR CRAM DOWN AND DENYING CONFIRMATION OF CHAPTER 11 PLAN This matter is before the Court upon Beaver Office Products, Inc.’s (the “DIP”) amended plan of reorganization (the “Plan”) to which General Electric Capital Corporation (“GECC”), A1 Simon and Janie Simon (collectively the “Simons”) have filed objections. The DIP has filed a motion in support of con...
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OPINION This appeal arises from the bankruptcy court’s orders dismissing Debtor’s chapter 11 case pursuant to section 1112(b) and denying reconsideration of the dismissal. We AFFIRM the bankruptcy court. I. FACTS Debtor and Appellant, St. Paul Self Storage Limited Partnership (Debtor), is an Arizona limited partnership and successor in interest to St. Paul One Self Storage (St. Paul One), a...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR ENTRY OF DAMAGES THIS CAUSE came before this Court on Hillard’s Motion to Award Damages in Favor of Hillard Development Corporation and Against the Defendants dated November 23, 1994 (the “Motion”). For good cause stated in the Motion, and after an evidentiary hearing before me on December 23, 1994, and based on the other submissions of the parties, ...
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OPINION I The Chapter 7 trustee requested compensation. The appellants objected, arguing that the trustee failed to submit time records to support the request and had already received sufficient compensation for his role as attorney to the trustee in the case. The bankruptcy court allowed most of the fees requested. We REVERSE. II FACTS Roderick Timber Company (“D...
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OPINION OVERVIEW Creditor filed a nondisehargeability complaint nearly three months after the deadline for filing. On debtor’s motion to dismiss for untimely filing, creditor alleged it never received actual notice of the bankruptcy filing or the attendant deadline for filing nondis-chargeability complaints. The bankruptcy court determined that the clerk’s certificate of mailing ...
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OPINION This appeal arises from the denial of an application for an administrative expense priority pursuant to § 503(b)(1) 2 for a claim arising from a postpetition industrial accident and a postpetition worker’s compensation award. We REVERSE and REMAND. I. FACTS 3 On March 10, 1988, the debtor, Sierra Pacific Broadcasters, Ltd. (“Sierra”) filed a volunt...
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ORDER DENYING DEBTOR’S MOTION TO RECONSIDER ORDER DISMISSING APPEAL THIS MATTER came before the Court on Debtor’s Motion to Reconsider Order Dismissing Appeal entered on July 18, 1995 for failure to timely file designation of items for the record and statement of the issues as required by Federal Rule of Bankruptcy Procedure 8006. The appeal was dismissed as authorized and directed by Local rule...
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DECISION & ORDER BACKGROUND On March 7, 1995, the debtors, Dennis A. Fisher and Dawn M. Fisher, (the “Debtors”) filed a petition initiating a Chapter 7 case. On March 23, 1995, the Office of the United States Trustee filed its designation of John A. Belluscio, Esq. as trustee (the “Trustee”). The minutes filed with the Court of a Section 341 Meeting of Creditors conducted by the Trus...
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OPINION The debtors in this case moved to avoid two judicial liens pursuant to § 522(f)(1) 1 as impairing their homestead exemption. The bankruptcy court held that the exemption was not impaired and therefore denied the motion. We AFFIRM. I. FACTS The facts are not in dispute. On November 8, 1991, the debtors/appellants, David and Willie Mae Ball (“Balls”) filed a joint chapter 7 petiti...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a Confirmation hearing held June 29, 1995. The Debtors seek Court approval of their Chapter 13 Plan of Reorganization. An Objection to the Debtors’ Chapter 13 Plan has been filed by a creditor, Locomotion Properties, Ltd. The Objection was heard at the Confirmation hearing. Based upon the evidence presented at ...
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*897 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon an Objection to Claim # 6 of Locomotion Properties, Ltd., filed by the Debtors (Doc. No. 19). A hearing was held on the Objection on April 20, 1995 at which the Court heard testimony of witnesses, received evidence and heard argument of counsel. Based upon the evidence presented at the hearing, the Court makes t...
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OPINION Before the court is a motion by the Federal Deposit Insurance Corporation (“FDIC”), a creditor in this ease, to extend the time to object to the debtor’s discharge. After holding a hearing on August 22, 1995 on this motion, and the objection thereto by the debtor, I took the matter under advisement. For the reasons set forth below, the FDIC’s motion is denied. *406 The debtor filed ...
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ORDER DENYING U.S. TRUSTEE’S MOTION TO ALTER OR AMEND ORDER OF AUGUST 21, 1995 This matter is before the Court pursuant to the U.S. Trustee’s Motion to Ater or Amend the Opinion and Order Denying Motion to Remove Rhonda Repp as Chapter 7 Trustee and Rhonda Repp’s response thereto. After due consideration of the pleadings, the joint pre-trial statement and the record herein, and under the present p...
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SUPPLEMENTAL OPINION This adversary proceeding was filed by the IRS to determine whether funds levied by the Internal Revenue Service (“IRS”) 20 days prior to the involuntary petition are property of the estate. The IRS contends that the notice of levy divested the debtor of its interest in the property. The trustee and the Electrical Workers’ Fringe Benefit Fund (“Electrical Workers”...
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MEMORANDUM AND ORDER ON MOTION TO REOPEN AND VACATE ORDER DETERMINING VALUE OF SECURITY James and Maria Jarusinsky move to reopen and vacate a June 9,1994 order entered pursuant to § 506(a). That order fixed the value of certain real property encumbered by two liens securing debts owed to these mov-ants and determined that their claims were wholly unsecured. Because of events subsequent t...
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ORDER DENYING MOTION TO RECONSIDER On July 27,1995, the Court found that Bill Lytran and “Kansas Collection Agency” had violated the automatic stay imposed by 11 U.S.C.A. § 362(a) when the debtor filed for bankruptcy and pursuant to § 362(h), awarded the debtor $250 in attorney fees and imposed a fine of $150, payable to the Clerk of the Court, for the violation. The Court also denied a s...
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*568 MEMORANDUM OPINION Plaintiff Lynus Becker asks this Court to find that a joint obligation assigned to debt- or/defendant Colleen Marie Becker (“debt- or”) in the parties’ divorce is nondischargeable pursuant to 11 U.S.C. § 523(a)(15). Additionally, plaintiff asks this court to find that he has a right to setoff as to certain funds held in escrow for debtor. This is a core proceeding un...
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ORDER DENYING MOTION TO RECONSIDER REDUCTION OF FEES The matter before the Court is the motion of H. Kent Desselle and the Desselle Law Office, L.L.C. to reconsider this Court’s Order of July 31, 1995, allowing in part and denying in part Mr. Desselle’s amended application for compensation and reimbursement of expenses. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over whi...
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MEMORANDUM-DECISION AND ORDER This matter is before the Court by way of objections filed by the Chapter 13 Trustee (“Trustee”) and State Employees Federal Credit Union (“SEFCU”) to confirmation of the Chapter 13 plan filed by John Goewey and Paula Goewey (“Debtors”). FACTS The Debtors filed their petition seeking relief under Chapter 13 on March 23, 1995 (“petition date”). As of...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This matter is before the Court on a motion for summary judgment filed by Defendant-Debtors, Terry Lee and Kathleen Ann Coatney. This proceeding arises in a case referred to this Court by the Standing Order of Reference entered in this District on July 16, 1984. It is determined to be a core proce...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court upon the motion by the debtors in possession requesting entry of an order approving the sale of real property hot in the ordinary course of business and free and clear of liens. This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. § 157(b). STATEMENT OF FACTS Charles and Jane Collins (“Collins...
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ORDER TRANSFERRING ADVERSARY PROCEEDING TO DISTRICT COURT This matter was scheduled for trial on July 10, 1995, on the merits of the Plaintiffs Amended Complaint. Upon examination of the pleadings just prior to the commencement of the trial, and although neither party had previously raised the issue, the Court sua sponte questioned whether it had subject matter jurisdiction over the instant disp...
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MEMORANDUM OPINION This adversary proceeding came before the court for trial on March 22 and March 29, 1995. Both parties called witnesses and offered documentary evidence. Having heard and considered the evidence offered by the parties and having considered the arguments of counsel, the court makes the following findings of fact and conclusions of law. FINDINGS OF FACT ...
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MEMORANDUM OPINION AND ORDER This adversary proceeding is before the court pursuant to an order entered in the District Court on March 20, 1995, remanding this case for resolution by this court of the legal and factual questions raised by Plaintiffs’ claim that Defendant is liable to them under Chapter 75 which were not addressed by this court in the judgment and orders entered by thi...
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MEMORANDUM OPINION This adversary proceeding involves four separate claims by Wilbur and Ruth Hollar (“Debtors”) against the United States (“Defendant”). Count I and Count IV of the complaint were dismissed earlier. The dismissal of Count I was not appealed, while the dismissal of Count IV was affirmed on appeal to the District Court. Count II also was dismissed by this court but, on ...
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ORDER This ease came before the court on March 21, 1995, for hearing upon the motion to dismiss filed on behalf of Arnold Eugene Walser and Shirley Turner Walser (the “Walsers”) pursuant to § 1112(b) of the Bankruptcy Code. Christine L. Myatt and Amiel J. Rossabi appeared on behalf of the Walsers; Kenneth L. Jones appeared on behalf of the debtor; and R. Walton McNairy appeared on behalf of M...
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ORDER This case came before the court on March 21, 1995, for hearing on the Trustee’s motion requesting that the debtors be responsible for direct payment of the claim filed by the Internal Revenue Service on December 22, 1995, in the amount of $7,413.37, that the automatic stay be lifted so that the Internal Revenue Service may proceed with collection of the indebtedness claimed and that the...
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ORDER This case came before the court on April 24, 1994, for hearing on a motion filed on behalf of Ernest H. Cates and Patricia A. Cates (“Debtors”) pursuant to Bankruptcy Rule 5010 to reopen this case. Debtors seek to reopen in order to amend their schedules to list an unsecured creditor, Atascadero Federal Credit Union (“Atascadero”), which existed prepetition and which was omitted from th...
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ORDER This case is before the court for hearing on the objection by Carolina Telco Federal Credit Union (“Telco”) to confirmation of the proposed plan of the debtors, Bryan and Patricia White. The proposed plan classifies the Telco claim as an unsecured claim and proposes to pay a dividend of twenty-five percent (25%) to Telco as an unsecured creditor. Telco filed its claim as a secur...
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MEMORANDUM OPINION This action to determine the dischargeability of a debt came before the court for trial on February 6, 1995. The issue before the court is whether a judgment debt resulting from the failure of J.F. Adkins, Inc. to maintain workers’ compensation insurance coverage for its employees should be excepted from discharge under 11 U.S.C. § 523(a)(2) or § 523(a)(6). For the following ...
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MEMORANDUM OPINION The plaintiff in this adversary proceeding is the Trustee for R.W. Joyce Trucking Company, Inc. (“Joyce”), which, prior to its bankruptcy, was a motor common and contract carrier regulated by the Interstate Commerce Commission. The defendants, Mohas-co Corporation and Mohawk Carpet, are former customers of Joyce for whom Joyce hauled freight while Joyce was engaged in busines...
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OPINION Introduction This matter comes before the Court upon the objection of the Debtor, Robert John Thomas (hereafter “Thomas” or “The Debt- or”) to a certain proof of claim filed in this Chapter 13 case by the Internal Revenue Service (“IRS”). An evidentiary hearing was held on May 19, 1995, and the parties have submitted Memoranda of Law in support of their respective positions. For t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding arises out of the attempted acquisition of the assets of LTV Aerospace and Defense Company’s (“LTVAD”) missiles division by Thomson-CSF, S.A. (“Thomson-CSF”) and VT Missile Company (together with Thomson-CSF, “Thomson”). Previously, LTVAD moved for summary judgment with respect to several claims it asserted against Thom...
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EN BANC OPINION AND ORDER IMPOSING SANCTIONS AND SUSPENDING ANDREW D. MORGAN FROM THE PRACTICE OF LAW IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF MICHIGAN I.Introduction This matter comes before the Court upon the United States Trustee’s March 13, 1995 Ex Parte Motion for an Order Directing the Debtor and Debtor’s Counsel to Appear and Show Cause Why ...
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MEMORANDUM OPINION The trial of this adversary proceeding to determine whether the chapter 7 debtor, Stephanie Walcott, is entitled to discharge her student loans with the defendant, USA Funds, Inc., pursuant to 11 U.S.C. § 523(a)(8)(B) was held in Raleigh, North Carolina, on August 9, 1995. JURISDICTION This bankruptcy court has jurisdiction over the parties and the subject matter of this ...
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MEMORANDUM I. INTRODUCTION The matters before the Court are three objections filed by Federal Home Loan Mortgage Corporation (“Federal Home”) to the following pleadings filed by Jean LeBrun (the “Debtor”): 1) a Motion Under 11 U.S.C. 1322b(2) [sic] to Modify the Rights of a Holder of a Secured Claim (the “§ 1322(b)(2) motion”); 2) a Motion for Determination of Secured Status Under 11 U.S.C. 5...
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ORDER On July 17, 1995, Marvin Marion (“Applicant”) filed an “Application/Petition For Allowance of Administrative Expenses.” After notice was given to all creditors and parties in interest, the Chapter 7 Trustee filed an objection to the allowance and payment of an administrative expense to the Applicant. The trial of the disputed issues in this matter was conducted on August 16, 1995. At the ...
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MEMORANDUM OPINION I. INTRODUCTION This shah constitute the court’s decision on debtor-defendants’1 motion to dismiss this adversary proceeding and the cross-motion of plaintiff Oil, Chemical and Atomic Workers Union (“OCAW”) to amend its complaint. The debtors contend that this adversary proceeding must be dismissed because OCAW lacks standing to present claims on behalf of its members for vio...
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DECISION REGARDING MOTIONS TO DISMISS AND MOTION FOR SUMMARY JUDGMENT This adversary proceeding seeks an order requiring the marshaling of assets. The facts more fully appear in the following discussion, which constitutes my findings of fact and conclusions of law. The Debtor, Mid Cape Grain, Inc. (“Mid Cape”) filed for protection under Chapter 11 of the Bankruptcy Code. The First Na...
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BENCH DECISION I must determine if Garry Wayne has properly perfected his security interest in assets of the debtor. The facts of this matter can be briefly stated. The debtor granted a security interest in certain of his assets to Garry Wayne. It is uncontested that Garry Wayne’s counsel caused a copy of the security agreement to be filed with the Town Clerk in Sharon, Massachusetts. Filing ...
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OPINION COMES NOW before the Court for consideration Defendants Motion to Dismiss. This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr.Proc. 7052 and disposes of all issues before the Court. PROCEDURAL BACKGROUND Debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code on August 25, 1994. Plaintiff filed i...
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ORDER This matter is before the Court on the motion of Debbie Strickland (“Claimant”), to reconsider the Court’s Order that disallowed Claimant’s proof of claim because it was filed after the date set as the last day to file claims. The Claimant has argued that her failure to file a timely proof of claim was based on excusable neglect, and that pursuant to the ruling in Pioneer Investment Se...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the application of Neil M. Kerstein, Esq. (“Kerstein” or “counsel”), counsel to Guard Force Management, Inc. (the “Debtor”), for compensation in the amount of $46,335.80 for legal fees and expenses. The Court scheduled a hearing on Kerstein’s fee application for June 8, 1995. At the hearing, the United States Trustee orally ob...
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*677 DECISION AND ORDER DENYING DEBTOR’S MOTION TO EXPUNGE CLAIM PRELIMINARY STATEMENT Before the Court 1 is a motion by the Debtor for an order expunging certain claims (the “Motion”). The relief is opposed. For the reasons set forth below, the Court holds that the Motion by Debtor to expunge Claim Number 8 is denied. RELEVANT FACTUAL BACKGROUND ...
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MEMORANDUM I. INTRODUCTION The matters before the Court are cross-motions for summary judgment. Stephen S. Gray, the Chapter 7 Trustee (the “Trustee”), seeks judgment against Huntsman Chemical Corp. (“Huntsman”) on his complaint to avoid certain preferential transfers pursuant to 11 U.S.C. § 547(b).1 Huntsman seeks summary judgment in its favor with respect to its asserted defenses to the complai...
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MEMORANDUM OPINION AND ORDER Judgment Lien THIS MATTER comes before the Court upon the Debtor’s Motion to Avoid Lien Pursuant to 11 U.S.C. § 522(f) concerning the lien of John T. Sullivan (“Creditor”). There is no dispute as to the following facts. The Creditor was Debtor’s attorney in a dissolution of marriage proceeding in state court. At some point in that proceeding, Cre...
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*399 DECISION ON MOTION TO DISMISS UNDER § 707(B) The United States Trustee has moved to dismiss this matter pursuant to 11 U.S.C. § 707(b). 1 At hearing it appeared that all relevant facts were set forth in the record and were not disputed in any meaningful respect. I took the matter under advisement. Summary of Facts Edward Snow (“Edward”) and Janet Claire Snow (“Janet”) (collecti...
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MEMORANDUM OPINION This matter is before the court on the motion of Lamont, Hanley and Associates, Inc. for summary judgment on the reorganized debtor’s objection to its $158,820.55 claim. The issue is whether a state court default judgment against the debtor is res judicata as to the amount of the claim. Findings of Fact The debtor filed a voluntary chapter 11 petition in t...
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*6 OPINION Carol B. Martin, administrator of the estate of Francis Martin (“Martin”) filed this adversary proceeding objecting to the granting of a discharge to Juraj J. Bajgar (“Debt- or”) on the basis of his transfer of certain properties. On July 10, 1995, I bifurcated the matter into (1) issues involving the real estate in Arlington, Massachusetts and (2) issues invo...
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ORDER ON MOTION TO DETERMINE SECURED STATUS OF CLAIM OF INTERNAL REVENUE SERVICE THIS CASE came on for hearing on the Motion to Determine Secured Status of Claim of Internal Revenue Service filed by Diana Deane Carr (the “Debtor”). On May 11, 1993, the Internal Revenue Service (“IRS”) filed a proof of claim in the total amount of $64,252.20, of which $64,106.46 is claimed as secured and $145.74...
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MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND/OR MOTION FOR JUDGMENT ON THE PLEADINGS The Plaintiff, D. Vance Martin, served as the attorney for the debtor’s ex-wife, Susan Morello, in a prepetition state court divorce proceeding styled Susan N. Morello v. Jake Joseph Morello, Jr., No. 61022. Following the debtor’s commencement of his Chapter 7 *754 ...
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OPINION A INTRODUCTION In the instant dispute, we are confronted with several issues arising in context to objections to proofs of tax claims (“the Objections”) filed by the City of Philadelphia (“the City”). As to the issues to which the parties have directed the most attention, we will sustain the objection to all taxes which arose prior to the Debtor’s purchase of the real...
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*947 ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on cross motions for entry of summary judgment. In his complaint, Plaintiff contends that Defendant-Debtor's discharge should be denied pursuant to 11 U.S.C. § 727(a)(2)(A) and (B). This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). Upon consideration of the motions and the record, the Cou...
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MEMORANDUM OPINION ON DEFENDANT-BONDHOLDERS’ MOTION TO DISMISS COUNT I INTRODUCTION This Adversary proceeding relates to the bankruptcy case filed by debtors Vance A. Stayner and Sharon F. Stayner (“Debtors”) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101, et seq. (1995). Circumstances giving rise to this proceeding spring from a series of municipal ...
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*295 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on cross-motions for summary judgment. In his complaint, Plaintiff seeks a determination that his worker’s compensation claim is nondisehargeable pursuant to 11 U.S.C. § 523(a)(6). This is a core proceeding under 28 U.S....
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OPINION Presently before the court are two motions filed by defendant, The Dial Corporation (“defendant”). In the first motion, filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,1 defendant asserts that the complaint should be dismissed for failure to state a claim upon which relief can be granted. In the second motion, defendant requests referral of plaintiffs interstate c...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST ATLANTIC UTILITIES CONTRACTORS, INC. Before the Court is Plaintiff-Trustee’s motion for summary judgment against Defen *960 dant Atlantic Utilities Contractors, Inc. pursuant to Fed.R.Civ.P. 56, adopted by reference herein through Fed.R.Bankr.P. 7056. In his complaint, Plaintiff seeks, among other things, a de...
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ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on cross motions for summary judgment. Plaintiff seeks a determination that a certain unliquidated liability of Defendants Debtor be excepted from discharge evidently pursuant to 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...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on cross-motions for summary judg *304 ment. In their complaint, Plaintiffs assert that Defendants’ prepetition termination of Plaintiffs’ franchise agreement and sublease in connection with Plaintiffs’ operation of a Sub...
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MEMORANDUM OPINION At Orlando, in said District on the 16th day of May, 1995, before Arthur B. Brisk-man, Bankruptcy Judge. This matter came before the Court on the complaint of the Debtor/Plaintiff, Bernardino Pichardo and United Student Aid Funds, Inc.’s Counterclaim, to determine the dis-chargeability of indebtedness owed to the Defendant, United Student Aid Funds, Inc. Appear...
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MEMORANDUM OPINION AND ORDER ON COMPLAINT In this Chapter 13 case, Norwest Financial Tennessee, Inc. (“Norwest”) filed an adversary proceeding (“complaint”) against four defendants. After the Court entered a temporary restraining order on August 2,1995, a Consent Order was entered into between Norwest and ah of the defendants except the debtor. Norwest filed an amended complaint as to the debto...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT This adversary proceeding is before the Court on Plaintiff-Debtor’s motion for summary judgment. In his complaint, Debtor seeks a determination that a jury award arising out of the parties’ divorce, which requires him to pay Defendant the sum of $3,000 per month for a period of 84 months,...
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OPINION Institut Pasteur (“Pasteur”) and Genetic Systems Corporation (“Genetic”) bring this adversary proceeding alleging that Cambridge Biotech Corporation (the “Debtor”), a chapter 11 debtor here, is infringing three patents owned by Pasteur and licensed to Genetic. The patents cover methods for the detection of Acquired Immune Deficiency Syndrome (“AIDS”). The plaintiffs seek both ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION This Adversary proceeding relates to the bankruptcy proceeding filed by plaintiff under Chapter 11 of the Bankruptcy Code, Title 11 U.S.C. Pullman Construction Industries, Inc. and various subsidiaries (collectively “Pullman” or “Debtor”) filed the instant two-count Complaint to recover certain allegedly preferential t...
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ORDER In this adversary proceeding, a Chapter 7 co-Debtor, Raymond Williams, Plaintiff, filed an adversary complaint against the Defendant Internal Revenue Service (IRS) seeking a determination that unpaid trust fund withholding taxes assessed against the Plaintiff/Debtor are not due and owing to the IRS by the Plaintiff under 26 U.S.C. § 6672. After answer, trial of the matter was held o...
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OPINION This case requires the court to explore the nature, value and transferability of business goodwill, that most amorphous of intangible assets. The plaintiff, the trustee in bankruptcy, asserts that shortly before its bankruptcy the debtor transferred to Eastern Container Corp. (the “Defendant”), for no consideration, valuable goodwill in the form of customer business. In respon...
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ORDER GRANTING MOTION TO COMPEL This ease came on for hearing on February 28 and May 9,1995, on the Motion of Barnett Bank of Central Florida, N.A. (the “Creditor”) to Compel Debtors to Reaffirm, Redeem, or Surrender Collateral, and to Defer Entry of the Discharge Pending Consideration of This Motion (the “Motion”). The creditor also filed a Memorandum in Support of the Motion. The Motion req...
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MEMORANDUM OPINION This matter came before the Court on the Risa L. Kay, the Debtor’s, Motion to Convert Case to Chapter 11. After reviewing the pleadings, evidence, receiving testimony, exhibits, and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT On September 15, 1993, the Debtor sought protection under Chapter 11 of the Bankrupt...
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MEMORANDUM OPINION At Orlando, in said District, on the 8th and 23rd days of February, 1995, before Arthur B. Briskman, Bankruptcy Judge. This matter came before the Court on the Emergency Motion by Sim Pyon and Kum Cha Pyon for Relief from the Order Granting Debtor’s Motion to Reopen Case. Appearing before the Court were Lisa M. Connell, attorney for Sim Pyon and Kum Cha Pyon (t...
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ORDER After due notice a hearing was held at Billings on June 12, 1995, on the Trustee’s motion, filed May 23, 1995, to settle and compromise Trustee’s objection to the Debtors’ homestead exemption and complaint for turnover thereof, in return for a total settlement paid to the Trustee in the amount of $1,450. No objection was filed, and no appearance was made at the hearing in opposition...
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MEMORANDUM OPINION This matter came before the Court on the Debtors’ Verified Motion for Judgment Imposing Bankruptcy Code Section 110 Sanctions on Bankruptcy Petition Preparer re: Virginia Bell d/b/a Action Paralegal Service (the “Debtor’s Motion”) [Document No. 9]. Appearing before the Court were Andrew Baron, attorney for Debtors, Miguel A. Cordero and Annie Bladotioty Cordero; Margaret Hu...
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MEMORANDUM OPINION This matter comes before the Court on the Application of Alimenta (U.S.A.), Inc. (“Ali-menta”) For Reimbursement of Costs and Expenses Incurred in Unsuccessful Bidding (“Application”). Alimenta seeks to recover $206,544.21 in costs and expenses arising out of its unsuccessful bid for the assets of S.N.A. Nut Company (“SNA” or “Debtor”). In support of its Application, Al...
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Memorandum Opinion This case presents the issue of the extent to which a Chapter 13 debtor may cure a pre-petition default on indebtedness secured by her principal residence — in particular, whether she may set aside a pre-petition foreclosure sale, reinstate the mortgage, decelerate the indebtedness (accelerated under the terms of the indebtedness), and resume payments under the pre-defa...
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ORDER This matter came on for hearing on the Debtors’ motion for lien avoidance on June 28, 1995, in Fergus Falls, Minnesota. Minnesota Department of Agriculture and First National Bank of Mahnomen, lien creditors, objected. Appearances were noted in *788 the record. The Court, having heard and received arguments of counsel; having reviewed the pleadings, affidavits and relev...
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MEMORANDUM OF DECISION This Chapter 11 case is before the court on the motion of the debtor in possession to pay a $10,000 postpetition retainer to its counsel, Altheimer & Gray. The only funds available to pay the requested retainer are cash collateral, which can be used only if the interest of the creditor in the debtor’s property is adequately protected. As discussed below, the interes...
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MEMORANDUM OPINION This adversary proceeding involves a claim by the plaintiffs that the defendants attempted to recover debts in violation of the plaintiffs’ confirmed plan of reorganization and the order of this court enjoining creditors from taking action on all claims except those arising out of the confirmed plan. The plaintiffs contend that the actions of the defendants included the fil...
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OPINION Before VOLINN, RUSSELL and OLLASON, Bankruptcy Judges. OVERVIEW Under California law, a debtor does not have automatic homestead protection against a judgment hen that attaches to real property at a time prior to the debtor having made the property a dwelling place. In the order on review, the bankruptcy court held state law governed and denied the debtors’ motion to...
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OPINION Before YOLINN, RUSSELL and HAGAN, Bankruptcy Judges. OPINION OVERVIEW Prior to filing his chapter 11 petition, the debtor commenced a suit against defendants for breach of contract in a state court. After the filing, the debtor in possession voluntarily continued with the litigation. Ultimately, defendants prevailed and were awarded attorneys’ fees pursuant ...
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OPINION This appeal concerns Debtors’ claimed exemption of an annuity. The bankruptcy court sustained the objection of the bankruptcy trustee to the claimed exemption, citing In re Pikush, 157 B.R. 155 (9th Cir.BAP 1993), aff'd, 27 F.3d 386 (9th Cir.1994).2 Debtors timely appealed the court’s final order entered on November 1, 1993. We Remand. PACTS AND PROCEDURE BELOW Stephen and Pamela Turner...
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OPINION William H. Broach (“trustee”) is the chapter 7 trustee for Lucas Dallas, Inc. (“debt- or”). The trustee filed an adversary proceeding to recover numerous alleged fraudulent transfers by the debtor to GE Capital Mortgage Services, Inc. (“GE Mortgage”), and General Electric Auto Lease, Inc. (“GE Auto”), among others. (Collectively, GE Mortgage and GE Auto shall be referred to as...
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OPINION Before VOLINN, JONES and OLLASON, Bankruptcy Judges. OVERVIEW The debtor’s former wife and her attorney appeal a summary judgment which concluded that transfer of certain proceeds from the sale of the family residence pursuant to post-dissolution orders by the Superior Court issued within 90 days of the debtor’s bankruptcy constituted an avoidable preference pursuant...
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MEMORANDUM OPINION This matter is before the Court on the issue of dischargeability of debt pursuant to 11 U.S.C. § 523(a)(5). By Order of this Court entered on March 16,1995, the parties were given a briefing schedule, and upon its completion were to tender an order of submission. The parties filed their briefs, and the Order of Submission was entered on July 24, 1995. This Court has jurisdi...
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MEMORANDUM OPINION This adversary proceeding came before the court on January 18, 1995, for hearing upon the motion to dismiss filed by the defendants pursuant to Rule 7037, motions for summary judgment filed by both parties, and for final pre-trial. The plaintiffs-debtors, Wilbur P. Hollar and Ruth C. Hollar, appeared pro se. Michael Day appeared for the defendants. For th...
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MEMORANDUM The issues are whether this court has subject matter jurisdiction of this post confirmation dispute between the reorganized debtor and a major creditor; and if so, whether abstention is appropriate under 28 U.S.C. § 1334(c). This court has jurisdiction. Abstention is not warranted. The following are findings of fact and conclusions of law. FED.R.BANKR.P. 7052. I. ...
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OPINION Procedural and Factual Background The narrow issue before the Court concerns the allowance of attorney’s fees under 11 U.S.C. 506(b) to the oversecured Mortgag *615 ee of the above Chapter 11 Debtor, West Chestnut Realty of Haverford, Inc. (“West Chestnut” or the “Debtor”). The Mortgagee, V. DiFrancesco and Sons (“DiFrancesco”) is the holder of a first mo...
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OPINION AND ORDER This matter was initiated by the above-captioned Debtors/Plaintiffs, A. Barletta & Sons, Inc. and A. Barletta & Sons, a partnership, hereinafter (“Plaintiffs”), against Trib-ble & Stephens Co., et al., by adversary complaint filed September 16, 1994. The instant matter deals with a Motion for Summary Judgment filed on behalf of all of the above-captioned Defendants, hereinafte...
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The debtor, John H. Burrell, an inmate at the Morgan County Regional Correction Facility in Wartburg, Tennessee, filed a pro se petition under Chapter 13 of the Bankruptcy Code on June 1, 1995. 1 The debtor’s incarceration is attributable to his February 19, 1993 conviction in the Criminal Court of Anderson County, Tennessee, of multiple counts of rape, sexual battery, and...
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MEMORANDUM OPINION This matter is before the Court on the motion of the United States of America under Section 1112(b) of the Bankruptcy Code to dismiss the chapter 11 case based on material default by the debtor with respect to the confirmed plan. After notice to all creditors, a hearing was held in open court on January 31, 1995, attended by counsel for the United States and counsel for the r...
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MEMORANDUM OF OPINION ON COMPLAINT FOR TURNOVER Olaf Iden Choate and Sylvia Aguirre Choate (Debtors) seek a turnover from James D. Norvell of Norvell & Associates, Attorneys at Law, of funds retained from a personal injury settlement to pay medical expenses. The court finds that the Debtors’ request for turnover should be denied and that Mr. Norvell should be instructed to pay the medical...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS CASE came before the Court to consider the Motion for Relief from Stay filed by Mitchell Pozin (the Creditor). In his Motion, the Creditor requests relief from the automatic stay to permit him to complete the foreclosure proceedings that had been commenced with respect to the Debtor’s homestead property and also to permit him to take title to that prope...
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Robert Bradley, Sr. is an individual operating as a Chapter 11 Debtor-in-Possession. He has so operated for nearly four years, and a plan of reorganization has been filed, but not yet confirmed. At the time he filed Chapter 11, he was married to Sandra Bradley. In recent months they have separated, and a divorce proceeding is pending. She has filed a request for payment of an administrative expen...
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OPINION PROCEDURAL BACKGROUND This matter comes before the court as a motion by debtors Michael Kaplan and Morris Kaplan (“debtors”) to estimate the claims of creditors Commercial Bank of New York (“CBNY”) and Midlantie National Bank (“Midlantic”) at zero pursuant to 11 U.S.C. § 502(c). This court heard the motion on February 27,1994. In May 1994, Midiantic’s *873 de...
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OPINION This matter comes before the Court upon the objection of the Debtor, Pasquale DiCamillo (the “Debtor”), to a certain proof of claim filed in this Chapter 13 case by the Internal Revenue Service (“IRS”). At issue is whether the pendency of a prior bankruptcy proceeding served to toll the 240 day priority period for assessed income taxes as set forth in 11 U.S.C. § 507(a). A hearing was...
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DECISION ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DEBTORS/DEFENDANTS’ CROSS-MOTION TO EXPUNGE PLAINTIFFS’ CLAIM In this adversary proceeding, Plaintiffs M and F Hides and Skins Co., Inc. (“M & F”), M and F Hides and Skins Co., Inc. Pension Plan (“M & F Pension”), Irving Gevirtzman (“Gevirtzman”) and Simon Leiser (“Leiser”) (collectively the “Plaintiffs”) 1 seek to foreclo...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS CASE came on for hearing on the Motion for Relief from Stay filed by G.E. Capital Modular Space f/k/a Gelco Space, a Division of Transport International Pool, Inc., a Pennsylvania Corporation (“G.E.”). In the Motion, G.E. asserts that it is entitled to relief from the automatic stay to obtain possession of a mobile office unit presently in the pos...
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MEMORANDUM-OPINION The matter presently before this Court concerns Debtor, Ina Belle Brown’s (“Brown”), 1994 federal earned income credit of $1,887.00. Brown has claimed an exemption under K.R.S. 205.220 of the tax credit, to which the Trustee has objected. Having reviewed the briefs filed by both parties, as well as having considered the arguments presented by counsel at the hearing ...
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MEMORANDUM OPINION The court is presented with motions for summary judgment of Andrew Aloe and Mark A Aoe (‘Aloes”) and Shenango Incorporated Plaintiffs’ motions for summary judgment are also pending. For the reasons expressed hereinafter, the motions of the Aoes and Shenango shall be granted. The motions of the Plaintiffs’ shall be denied. Facts This matter originates fr...
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ORDER On the 26th day of July, 1995, the above-referenced adversary proceeding came on for trial. Counsel appearing were Mark Grober, attorney for the Plaintiff and Jim McClure, attorney for the Defendant. At the conclusion of the trial, the parties were allowed until August 18, 1995, in which to submit briefs on the entitlement to attorney fees. The Plaintiffs attorney filed a letter stating t...
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*136 MEMORANDUM This matter is before the Court upon cross-motions for summary judgment. The debtor, exercising the avoidance powers of a trustee, § 522(h), filed a complaint pursuant to 11 U.S.C. § 547(b) to set aside as a preference payments made to the defendant, Commercial Credit Corporation (“Commercial”) resulting from a garnishment in the New Mexico state district court. The debtor cla...
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MEMORANDUM-OPINION This matter is before this Court on the motion of Defendant, First Citizens Bank, Hardin County (“First Citizens”), to dismiss the Complaint filed against it by Kyle A. Cooper, Trustee for the Debtor’s estate (“Trustee”). Trustee seeks by this adversary proceeding to have the mortgage held by First Citizens declared void on the theory it was improperly perfected. Having rev...
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ORDER DETERMINING DISPOSABLE INCOME On October 25, 1994, the Court entered a Memorandum Opinion and Order denying the trustee’s motion for termination of the Chapter 12 proceeding and discharge of the debtors. The Court found that Farmers Home Administration (“FMHA”) had made a prima facie showing that there was unremit-ted disposable income, based on substantial discrepancies between the inc...
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DECISION OF QUESTIONS WHETHER TO 1) ADJOURN THE HEARING ON THE COURT’S CALENDAR 2) FIX A DATE FOR A HEARING ON THE DISCLOSURE STATEMENT BEFORE THE COURT 3) CONVERT OR DISMISS THESE CASES UNDER CHAPTER 11 4) ACCEPT EXAMINER’S RECOMMENDATION WHAT IS A DISCLOSURE STATEMENT? As judicial officialdom1 teaches: *73After a plan is filed, but before it can be voted on, the court must approve a...
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ORDER Currently before the Court in these proceedings is the Motion for Summary Judgment of Lee J. Ford (hereinafter “the Debt- or”). The Debtor’s motion comes in response to a Complaint to Determine Dis-chargeability of Debt, filed by Chase Manhattan Bank, N.A. (hereinafter “Chase”). These matters fall within the subject matter jurisdiction of the Court, see 28 U.S.C. § 15...
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AMENDED MEMORANDUM OF DECISION ON SUMMARY JUDGMENT MOTION I. INTRODUCTION The debtor has brought this adversary proceeding against the selling shareholders of a leveraged buyout (“LBO”) to recover the funds that they received in the buyout transaction. While the action was also brought against the bank that financed the transaction, the bank has settled. The Court grants summary judg...
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DECISION ON CROSS-MOTIONS OF DEFENDANTS FOR SUMMARY JUDGMENT ASSERTING FAILURE OF TRUSTEE TO COMMENCE TIMELY AVOIDANCE ACTIONS UNDER 11 U.S.C. § 546(a) These two adversary proceedings were brought by the Chapter 7 Trustee of C & R Beer & Soda, Inc. (“C & R” or “Debtor”), formerly a retail beer and soda distributor, against product suppliers (collectively “Defendants”) to recover alleg...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This contested matter is before the Court on a Motion for Summary Judgment filed by *86 the defendant, Melanie Morris Glazer, and on a Motion for Summary Judgment filed by the plaintiff and debtor in this case, Fred S. Silverstein, Jr. A hearing was held before this Court on June 5, 1995. For the reasons set forth...
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MEMORANDUM OPINION This matter is before the Court on the motion of the United States for reconsideration of the Court’s ruling that Master-Hal-co’s claim to interpleaded funds is superior to that of the government. The facts are undisputed. On December 3, 1990, the IRS assessed the debtors with income taxes of $59,763.30 for 1989. On April 27, 1991, Master-Halco obtained a $92,-714.92 judgment ag...
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ORDER ON MOTION TO DISMISS THIS MATTER comes before the Court on the Motion to Dismiss Plaintiffs First and Third Claims for Relief filed by Defendants Karen J. Mathis and the Mathis Law Firm, P.C. (collectively, “Mathis”) on July 6, 1995, the Response thereto filed by the Debtor on July 31,1995, the Motion to Reopen Hearing on Motion to Dismiss filed by Mathis on August 4, 1995, and the ...
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MEMORANDUM OPINION William M. Flatau, Chapter 7 Trustee, Plaintiff, filed an adversary proceeding on January 26,1995. On June 22,1995, Plaintiff filed a “Motion for Summary Judgment as to Count Two of Plaintiffs Complaint.” Homer H. Stewart, Debtor, Defendant, filed a response to Plaintiffs motion on August 7, 1995. The Court, having considered the record and the arguments presented, ...
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MEMORANDUM OPINION AND ORDER The Chapter 7 Trustee, Robert A. Pummill (the “trustee”) objects to the tools of the trade exemption claimed by debtor Kathy Ann Carrell with respect to certain transmission cords and rebuild kits used in the operation of a business owned by herself and her husband, debtor Richard Glen Carrell. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the C...
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MEMORANDUM OPINION This Chapter 12 bankruptcy case was converted to a case under Chapter 7 of the Bankruptcy Code (the “Code”) on January 23, 1995. Subsequent to said conversion debtors amended their bankruptcy schedules claiming as exempt two Agricultural Stabilization and Conservation Service (“ASCS”) crop insurance payments for the 1994 crop year in the total amount of $7,250.00. The Chapt...
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AMENDED MEMORANDUM OPINION Debtors filed a Chapter 11 bankruptcy case, which was subsequently converted to *472 Chapter 7. Agribank, FCB, Successor in interest to the Farm Credit Bank of St. Louis (“Agribank”), has moved this Court to lift the automatic stay as to a 200 acre farm upon which Agribank holds a promissory note and Deed of Trust. In response, the debtors moved...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR STAY OF PROCEEDINGS Following deregulation of the trucking industry, common carriers bowed to intense competition and negotiated rates with customers far below those on file with the Interstate Commerce Commission (“ICC”).1 Not a few carriers rode negotiated rates to ruin. TSC Express Co. appears to be one o...
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MEMORANDUM OF DECISION The trustee of the above-captioned chapter 7 estate (“Trustee”) seeks sanctions against the Farmers Insurance Credit Union (“Credit Union”) for willful violation of the automatic stay. For the reasons set forth below, the motion is granted. SUMMARY OF FACTS Prior to the commencement of this bankruptcy case, the debtor (the “Debtor”) sold insurance pursuant...
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MEMORANDUM OPINION AND ORDER RE: FINAL APPLICATION OF WHITMAN BREED ABBOTT & MORGAN FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES The final application of Whitman Breed Abbott & Morgan (‘Whitman”), counsel to Rocky Mountain Helicopters, Inc., et al., for allowance of compensation and reimbursement of expenses came before the court April 10, 1995. Those appearing were: Hollac...
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MEMORANDUM OF DECISION I. INTRODUCTION Before the Court for determination is a Complaint, pursuant to 11 U.S.C. § 523(a)(6), filed by Jane Brzys (“Brzys” or “Plaintiff’) against the debtor George Lubanski (the “Debtor” or the “Defendant”) seeking the nondisehargeability of a debt evidenced by a judgment obtained by Brzys against the Debtor in state court. The said judgmen...
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OPINION This matter comes before the Court upon the Complaint of the Debtor, Karen V. Madison (the (“Debtor”), to determine the value of a 1994 Honda Civic EX Coupe, which the Debtor owns subject to a purchase money security interest held by Midlantic Bank. At issue is what method of valuation should be utilized in a Chapter 13 proceeding to establish a creditor’s allowed security int...
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MEMORANDUM OPINION Trial was held December 21, 1994, on plaintiffs complaint to except a judgment debt from discharge pursuant to 11 U.S.C. § 523(a)(6) and (a)(9). For reasons stated in this opinion, judgment will be entered for defendant, and the complaint dismissed. Facts On May 29, 1993, debtor was drinking alcoholic beverages for approximately two hours in a nei...
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MEMORANDUM OPINION Hearing was held September 15, 1994, on the confirmation of debtor’s Amended Plan of Reorganization dated June 21, 1994. Creditor Central Fidelity Bank objected to confirmation on the ground that the plan improperly attempted to modify a consent order which held that the debt owed to Central Fidelity was nondischargeable. Excluding the dispute underlying Central Fid...
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MEMORANDUM OPINION Hearing was held November 29, 1994, on a joint application for approval of compromise filed by the debtors’ trustee in bankruptcy and other interested parties. The application was opposed by debtor and the Office of United States Trustee. Following argument the court ruled from the bench that the application would be approved on the condition that the trustee modify the s...
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MEMORANDUM OPINION Hearing was held March 22, 1995, on the chapter 13 trustee’s objection to confirmation of debtors’ plan. The court sustained the objection and signed an order denying confirmation. This opinion supplements the court’s bench ruling. Facts The debtors pro se filed a chapter 13 petition on October 31, 1994. According to the petition Mr. Kasun is a certified public acco...
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MEMORANDUM OPINION Hearing was held May 3, 1995, on the United States Trustee’s motion to extend the time to file a complaint to object to debtor’s discharge. Debtor objected to the extension alleging that the motion was not timely filed. The court took the matter under advisement. Under the unique circumstances of this case, I will enter an order granting the United States Trustee’s ...
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MEMORANDUM OPINION Hearing was held December 8, 1994, on plaintiffs amended complaint to avoid post-petition transfer and compel turnover of an unused portion of a retainer given prepetition. The court took the matter under advisement. For reasons stated in this memorandum opinion, the court will enter an order compelling the turnover of the unused portion of the retainer in the amoun...
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MEMORANDUM OPINION Plaintiff brought this adversary proceeding by complaint to except a prepetition state court judgment against debtor from discharge pursuant to 11 U.S.C. § 523(a)(6). Plaintiff now moves the court on the basis of res judicata to grant summary judgment to fix the amount of the debt in the same amount as plaintiffs judgment, i.e., $25,-000.00 compensatory damages and ...
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MEMORANDUM OPINION Hearing was held May 3,1995, on Debtors Kenneth and Deborah Carberry’s motion to reopen their joint bankruptcy case. The court continued the matter until May 17, 1995. After hearing additional evidence, the court took the matter under advisement. Because the circumstances surrounding debtors’ case do not warrant reopening the ease, debtors’ motion is denied. ...
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MEMORANDUM OPINION Hearing was held May, 3, 1995, on Washington Federal Savings Bank’s objection to confirmation of Debtor Dean D. Oliver’s chapter 13 plan of reorganization and on debtor’s motion for a show cause order against Washington Federal. The court took the matters under advisement. For the reasons stated in this memorandum opinion, the court will enter orders denying confirm...
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ORDER This matter having come on for hearing upon the objection of Alice Tibbetts to Trustee’s proposed sale; due notice of said hearing having been given; Frank Anderson having appeared as attorney for Alice Tibbetts and Lionel C. Williams having appeared as attorney for the Trustee; and testimony having been taken and arguments having been given and the matter having been taken under submissio...
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MEMORANDUM OPINION The court heard legal argument April 13, 1995, on Debtor Curtis Catron’s complaint to determine whether a debt is dischargeable or whether it is excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). The court took the matter under advisement. After hearing the respective arguments of counsel and after reviewing the material submitted by counsel, the court finds...
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ORDER This matter was heard on July 10,1995, on Defendant’s Motion For Amended Findings And Order For Judgment And/Or New Trial. Appearances were noted in the record. The Court, having heard and received arguments; having reviewed the pleadings and relevant files; and, being fully advised in the matter; now makes this Order pursuant to the Federal and Local Rules of Bankruptcy ...
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MEMORANDUM OPINION Hearing was held April 26, 1995, on cross motions for summary judgment on plaintiffs complaint to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and § 523(a)(6). The court took the matter under advisement. For the reasons stated in this memorandum opinion, the debt of $46,-688.65 will be excepted from discharge pursuant to § 523(a)(2)(A). The coun...
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*371 MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on June 7,1994 on the Motion to Assume Unexpired Commercial Lease (Motion) filed by LonePine Corporation (LonePine) and Objections of the Landlord, R.H. Pierce Manufacturing Co. (Pierce), and the prospective purchaser of Pierce’s assets, PDKD, Inc. (PDKD). The Motion was supported by the Unsecured Creditors’ Commit...
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MEMORANDUM OPINION This matter comes before the court on cross motions to determine whether the Debtor’s Individual Retirement Account (“IRA”) is property of the bankruptcy estate. The facts presented to the court are essentially undisputed. The Debtor, Ronald J. Yuhas, filed a petition under Chapter 7 of the Bankruptcy Code on January 18, 1995. In his petition, the Debtor listed an IRA v...
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MEMORANDUM OPINION FACTS Prior to filing, the debtor sold consumer electronic goods, at both retail and wholesale. Jeffrey Arlynn was the debtor’s sole officer, director, and shareholder. Arlynn was an active gambler with lines of credit at various Las Vegas casinos, including defendant, the Las Vegas Hilton. Arlynn made approximately sixty trips to the Hilton between 1985 a...
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MEMORANDUM I. INTRODUCTION The matter before the Court is an objection filed by the Chapter 7 Trustee to the Debtor’s claimed exemption. The Debtor filed a response to the Trustee’s objection, and the Court, after hearing, took the matter under advisement. The pleadings filed by the parties raise two issues: 1) whether the Debtor’s interest in a pension plan is excluded from property...
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MEMORANDUM OPINION Premium Financing Specialists, Inc. (hereinafter “PFS”) has brought a motion for modification of an order issued on July 5, 1995, wherein PFS was granted relief from the automatic stay to cancel certain insurance policies issued in debtor’s name for *631 which PFS had advanced funds to pay the premiums. PFS asserts that it has a valid and enforceable fi...
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ORDER ON OBJECTION TO CONFIRMATION (Filed by AmSouth Bank) This matter came before the Court for a hearing on the Objection to Confirmation filed by AmSouth Bank. Appearing were the Debtor, Mr. Johnnie Marshall, the attorney for the Debtor, Mr. Wesley G. Smith, and Mr. Witty Allen, the attorney for AmSouth. The objection was submitted on affidavits filed by the parties following the hearing, ...
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MEMORANDUM OPINION This case was heard by the court on July 6, 1995, on the objection of the chapter 13 trustee to allowance of the claim of the Internal Revenue Service (“IRS”) filed herein on October 1,1992. The claim, in the amount of $1167.59, is for the income tax liability of the debtors for the tax period ending 12/31/89. The trustee objects to allowance of the claim on the ground it was...
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MEMORANDUM OPINION The court has before it Cross Motions for Summary Judgment filed by the Plaintiff, Norwest Mortgage, Inc. (formerly Barclays American Mortgage Corporation) and the Debtors. The parties request this court to summarily decide whether the undisputed facts as set forth below provide a basis upon which this court can grant reformation of an instrument, thus placing Norwe...
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AMENDED MEMORANDUM OPINION Movant, District Government Employees Federal Credit Union, having filed a Motion for Reconsideration of Motion to Modify Automatic Stay, requests that this Court reconsider its January 27, 1995 Order denying Movant’s Motion to Modify Automatic Stay (“Motion for Reconsideration”). On October 20, 1994, Movant filed a Motion to Modify Automatic Stay. On J...
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MEMORANDUM In this adversary proceeding, the chapter 7 trustee, N. David Roberts, Jr. (“Trustee”), seeks to avoid and recover pursuant to 11 U.S.C. §§ 547(b) and 550, certain alleged preferential transfers in the amount of $14,-886.73 made by the debtor to the defendant, Service Transport, Inc. (“Service Transport”), within ninety days preceding the debtor’s bankruptcy filing. Service Transport...
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MEMORANDUM OPINION This matter comes to be heard on the claim of Collen Court Condominium Association (the “Creditor”) and the objection thereto by Karin-Marie Lund (the “Debtor”). For the reasons set forth herein, the Court allows the claim in part, and partially sustains the objection. The claim is allowed as an overseeured claim pursuant to 11 U.S.C. § 506(b) in the principal amoun...
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO LIFT STAY This matter came before the Court for a trial on the Motion for Relief From Stay filed by the State of Alabama, Department of Human Resources, ex rel. Ginger Shew. The matter was submitted on the testimony of Ms. Shew and Mr. Allison, the exhibits admitted into evidence, the record in the case and the arguments of counsel. I. Fi...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR DIRECTED VERDICT This matter came before the Court on the Complaint Under Section 528(a)(2) to determine the dischargeability of a debt owing to the Plaintiff by David Lanier Chew.1 A trial was held on February 15, 1995, at which the Debtor, Mr. David Lanier Chew; Mr. Robert L. Shields, attorney for the Debtor; the Plaintiff, Mr. James H. Lewis; and Mr. *...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DEBTOR’S INTEREST IN PROPERTY This matter came before the Court for a pretrial conference on the Complaint to Determine Debtor’s Interest in Property and to Compel Turnover of Property filed by Au-reus International, Inc. and Omni, Inc. Mr. William L. Chenault, III, the attorney for the Plaintiffs; Mr. Michael F. Terry, the attorney for former employee...
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OPINION A. INTRODUCTION Presently at issue in this voluntary Chapter 11 bankruptcy case of a modest-sized, privately-owned mechanical contracting firm is a motion of a surety creditor to dismiss this case or transfer it to the nearby District of New Jersey (“D.N.J.”) because of alleged improper venue in this jurisdiction. Finding that the movant failed to meet its burden of d...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a complaint objecting to discharge pursuant to 11 U.S.C. § 727(a)(4)(A). The complaint alleges that the defendant knowingly and fraudulently made false oaths when completing his schedules and his statement of financial affairs. Upon the evidence presented at trial on July 11, 1995, the Court enters the followin...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon TUBE LIGHT COMPANY, INC.’s, a New Jersey corporation (“Defendant”), Motion for Bankruptcy Rule 9011 Sanctions against LLOYD T. WHITAKER, as Chapter 7 Trustee (“Plaintiff”) and Steven R. Browning (“Plaintiffs Counsel”). An evidentiary hearing was held on May 11, 1995. Upon the evidence presented, the Court enters the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon a Motion to Avoid Judicial Lien filed by the debtors. The debtors seek to avoid the judicial Hen claimed by Steven W. Connor and Jane S. Connor (claimants) against the debtors’ real property. After a hearing on March 29, 1995, the Court enters the following findings of fact and conclusions of law. *156 FINDINGS ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon Avery Phillips D/B/A Statewide Ignition Wire’s (“Plaintiffs”) complaint objecting to defendant’s discharge pursuant to 11 U.S.C. § 727(a)(2), (a)(3), and (a)(4). Plaintiff alleges that defendant concealed property from the estate, failed to keep or preserve recorded information from which the Tr...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon the Motion to Dismiss by plaintiff the Counterclaim of defendant Whitlock Industrial Painting Co., Inc. (Whitlock), suggesting the counterclaim fails to state a claim upon *528 which relief can be granted. After a hearing on May 10, 1995, the Court enters the following findings of fact and ...
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CORRECTED 1 RULING ON OBJECTION TO CONFIRMATION OF A CHAPTER 13 PLAN I. The sole issue to be resolved by this ruling is whether 11 U.S.C. § 1322(b)(2) 2 prevents Chapter 13 debtors from modifying the rights of the secured creditor holding a first mortgage on the debtors’ primary residence, a two-family dwelling (the “Property”). II. Jesus Del Valle (“Jesus”) and Iris Del Valle (toge...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon debtors’ objection to claim 34 filed by Beverly Hills Medical Park, Inc. (BHMP or medical park). Upon the evidence presented at hearings held on August 4, 1994, November 22, 1994, and February 22, 1995, the Court enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. De...
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ORDER DENYING EXEMPTION This case came on for hearing on the objections of James E. Ramette, the trustee, and Constance Procter Bartlett, the debtor’s former wife, to the debtor’s claimed exemption of $67,000 of proceeds he received from a personal injury settlement. Randall L. Seaver appeared for the trustee. Mark A. Olson appeared for the debtor. Lawrence R. Johnson represented Bartlett...
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MEMORANDUM OPINION Plaintiff/debtor (“debtor”) brings this adversary proceeding to determine the dis-chargeability of two debts arising from a default judgment entered against debtor in the Circuit Court for Montgomery County, Maryland (the “Maryland Court”). 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),...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding came before the Court upon a Complaint to Recover Monies Owed Estate. The plaintiff suggests the estate is owed rent by the defendant pursuant to a verbal lease agreement between the debtor and the defendant. Upon the evidence presented at trial on April 18, 1995, the Court enters the following findings of fact and conclusions of law: FIND...
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DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT This is an adversary proceeding in which Plaintiff, United States of America (“Plaintiff” or “the Government”) seeks to have a federal criminal judgment of restitution in the sum of $5 million (the “restitution order”) imposed upon Bernard M. Gelb (“Debtor” or “Defendant”) declared ...
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MEMORANDUM OPINION This matter came before the Court for a trial on the Petition to Discharge Taxes filed by the Debtor, Jimmy Randall Turner. Mr. Richard Hughes, the attorney for the Debt- or, and Mr. Richard O’Neal, Assistant United States Attorney, on behalf of the Defendants, appeared. The matter was submitted on the record in the case, and the stipulations, assertions and arguments o...
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MEMORANDUM OPINION The United States Trustee (the “UST”) moved this Court to vacate its Order authorizing the employment of debtor’s counsel. 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, the UST’s motion will be denied. Debtor filed for Chapt...
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MEMORANDUM OPINION This matter came before the Court for a trial on the Complaint to Determine Dis-chargeability of Debt filed by the Debtors, Michael Lee Gore and Pamela Jo Gore. Ms. Pamela Jo Gore, the Debtor, Mr. Stephen Grimes, the attorney for the Debtors, and Mr. Richard O’Neal, Assistant United States Attorney, on behalf of the Defendants, appeared. The matter was submitted on the ...
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OPINION The creditors Philmar Jewelers, Inc., A.S.K. Co., Bijan Fine Jewelry, Fabrikant & Sons, Inc., Blauweiss/Berkowitz, Monaco Imports, Finest Castings, Jeff Greenwald, Inc., Leon Dimston Co. Inc., Abest Import Corp., and Namdar Sons (collectively “the Creditors”) filed a motion pursuant to Federal Rule of Bankruptcy Procedure 4007(e) to extend the time to file a complaint for determination ...
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MEMORANDUM Before this court is the debtor’s objection to the proof of claim filed by Superior Lottery, Inc. for the unpaid purchase price of Keno tickets in the amount of $24,780.00. Debtor’s objection is overruled. FINDINGS OF FACT Superior Lottery, Inc. (“Superior”) filed a proof of claim in this Chapter 7 bankruptcy case for an unsecured claim totalling $24,-780.00. Superior’s claim a...
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MEMORANDUM OF DECISION ON BURDEN OF PROOF UNDER 11 USC § 523(a)(15) Kessler brought this adversary proceeding 1 before us under, among other theories, *372 sections 523(a)(5) and (15) of the Bankruptcy Code. 11 U.S.C. § 523(a)(5), (15). Kessler’s complaint consisted of an objection to the discharge of debts owed to her by her ex-spouse, Butler. These debts, totalli...
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ORDER ON DEFENDANT’S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT The Hamilton Defendants’ Motion to Dismiss and for Summary Judgment, with Mem *993 orandum Brief (“Motion”) is before the Court. The Motion was filed as a responsive pleading to the complaint filed in this case by Jeffrey A. Weinman, Trustee of the Chapter 7 estate of Lawrence E. Hamilton, Jr. (“Trustee”). T...
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American Preferred Prescription (“APP” or “Debtor”) filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code on July 22, 1993. APP filed an adversary proceeding and in conjunction therewith obtained a temporary restraining order restraining Lisa Reagan (“Reagan”), a former employee now employed by Health Management, Inc. (“HMI”) from divulging confidential or...
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MEMORANDUM OPINION Background The Debtor brought an adversary proceeding against adjoining landowners, seeking a declaratory judgment under a grant of easement and to enjoin the Defendants from encroaching upon the Debtor’s property. The Defendants filed a six count counterclaim for actual damages, punitive damages and attorneys’ fees. Following a bench trial, judgment was entere...
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ORDER In tMs case, the Court must decide whether the trustee has standing to sue the debt- or’s former accountants for malpractice and fraud where the debtor was operated as a “Ponzi” or pyramid scheme and where the debtor’s president and one of its shareholders was a partner in the defendant accounting firms. TMs case also involves the issue of whether the trustee’s claims are barred...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on July 20, 1995, on a motion by the Debtor, DEF Investments, Inc. (“DEF”), seeking to vacate the order for relief entered by this Court on June 9, 1995, and further requesting a dismissal of this involuntary Chapter 7 case. Alternatively, DEF requests that this Court amend the findings and conclusio...
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SUPPLEMENTAL OPINION1 The following are the facts in each of these four Chapter 13 cases: 1. Paragraph I-D of the debtor’s confirmed plan provides that upon confirmation of the plan, all property of the estate shall vest in the debtor, as permitted by 11 U.S.C. § 1327(b). 2. Following confirmation, the debtor did not make all of the payments required by the plan. 3. As a result, a secured creditor...
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DECISION AND ORDER DENYING DEFENDANTS’ MOTIONS FOR STAY OF PROCEEDINGS Before the court is a “Motion by Defendant Leslie R. Broock for Stay” (Doc. #16) and “Motion by Defendants Burnett Road, Inc., and M. Kasco, Inc., for Stay” (Doc. #17). The court is also considering the “Motion for Extension of Time to Answer or Otherwise Plead” filed by Mark Kossoff (Doc. #26). The court has jurisdict...
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ORDER ON TRUSTEE’S MOTION TO RETAIN JURISDICTION This matter came before the court on the trustee’s motion to retain jurisdiction over the adversary proceedings of Kelley v. Byrd, Adv.Proc. No. 95-90012, and Kelley v. Simmons, Adv.Proc. No. 95-90013, after the administrative case was dismissed. A hearing was held, and arguments of counsel were considered. The Debtors filed their ...
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MEMORANDUM OPINION On motion of the debtor, by counsel, this case was reopened to permit .the debtor to file and the court to consider a motion pursuant to 11 U.S.C. § 522(f)(1) to avoid judicial liens as liens that impair the debtor’s homestead exemption in real property described as 3800 Windingbrook Court, Lexington, Fayette County, Kentucky. There is no dispute about the fact the ...
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MEMORANDUM Before the Court for determination is a “Motion by Trustee for Judgment on Pleadings for Equitable Subordination of Redemption Claim” (the “Motion”) filed by the Chapter 11 Trustee, David J. Ferrari (the “Trustee”) against the defendant Family Mutual Savings Bank (“Family Mutual”). Through the Motion, the Trustee seeks entry of judgment on Count II of his Complaint for equi...
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The Chapter 7 trustee of Sher-Del Foods, Inc., has objected to the allowance of a claim which the National Labor Relations Board filed as a priority on behalf of former employees to recover an award resulting from the failure to bargain over the effects of the prepetition closure of the debtor’s business. At issue in this dispute is the character of such an award as wages and the determination ...
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MEMORANDUM OPINION ON OBJECTION TO CLAIM THIS MATTER is before the Court on debtor in possession’s objection to claim number 33 filed by Developers Diversified Realty Corporation (“Developers Diversified”). A hearing was held on June 29, 1995, and upon the evidence presented, the following findings of fact and conclusions of law are entered pursuant to Bankruptcy Rule 7052. *737Findings of Fact...
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AMENDED MEMORANDUM DECISION Introduction This adversary proceeding for recovery of an avoidable preference or setoff was brought by the debtor in possession, P.A. Bergner & Co. Holding Company (“Bergner” or “debtor”) against its prepetition creditor, Bank One, Milwaukee, N.A. (“bank,” “creditor” or “Bank One”), on April 26, 1992. For ease of reference, the plaintiff will be referred to as “Be...
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OPINION I. FACTS In June, 1993, Gary Richardson, president of Southern California Law and Accounting Services (“SCLAS”), called Jorge and Lupe Sandoval on the telephone. Richardson said that he had discovered that the Sandovals were being sued by a creditor, and suggested that the Sandovals meet with him to discuss their options. Mr. Sandoval met with Richardson later that day and pa...
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OPINION The debtor sought a temporary restraining order to enjoin state contempt of court hearings involving his failure to pay a spousal support judgment. The bankruptcy court denied the application, having granted his former spouse relief from stay eleven months earlier to proceed with state remedies to enforce the judgment. The debtor alleges abuse of discretion on the part of the court in...
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OPINION Debtor appeals the bankruptcy court’s dismissal of his complaint for failure to state a claim upon which relief may be granted. Debtor alleged that the City of Santee had willfully violated the automatic stay by demurring and obtaining dismissal of his cross-complaint in a state court action. We Affirm. STATEMENT OF FACTS Richard W. White (“Debtor”) filed a voluntary Cha...
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MEMORANDUM The instant proceeding is in many ways reminiscent of the proceeding before us in In re Taras, 136 B.R. 941 (Bankr.E.D.Pa.1992). Like Taras, it represents a proceeding brought by a debtor, based upon 11 U.S.C. § 506, to bifurcate the claim of an underse-cured mortgage into secured and unsecured portions. Secondly, as in Taras, it involves pa...
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186 B.R. 695 (1995) In re Seong Koo LEE and Jyung Sig Lee, Debtors. CITIBANK (SOUTH DAKOTA) N.A., Appellant, v. Seong Koo LEE and Jyung Sig Lee, United States Trustee, Appellees. BAP No. CC-94-1655-JOMe. Bankruptcy No. LA-91-76529-SB. Adv. No. LA-91-06419-SB. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 19, 1995. Decided August 17, 1995. *696 Darvy Mack...
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OPINION Appellee, Leon Pizante (the “Debtor”) filed a petition for relief in bankruptcy on January 4, 1991. The trustee instituted a § 548 1 action against the Debtor and his wife (“Mrs. Pizante”), which resulted in a judgment in favor of the trustee. In the § 548 proceedings, Mrs. Pizante defaulted in her discovery responses. The court deemed her default to be admissions. ...
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AMENDED OPINION Gary A. Plotkin (“Trustee”) is the Trustee for Pacific Land Sales, Inc. (“Debtor”), a Chapter 7 Debtor. The Trustee recovered a radio station from Dale J. Parsons, Jr. and Virginia Parsons (collectively, “the Parsons”), and Blue Wave Broadcasting, Inc. (“Blue Wave”), as an unauthorized postpetition transfer from the Debtor. Howard Green (“Receiver”) was appointed as a ...
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ORDER Currently before the Court in these proceedings is an Objection to Confirmation, filed by the First National Bank of Griffin (hereinafter “First National” or “the Bank”) in the Chapter 13 bankruptcy reorganization of Joe T. Hutcherson (hereinafter “the Debt- or”). This matter constitutes a core proceeding, see 28 U.S.C. § 157(b)(2)(L), and the Court will dispose of it...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON GENERAL MOTORS ACCEPTANCE CORPORATION’S MOTION FOR SUMMARY JUDGMENT THIS MATTER came before this Court on the Motion for Summary Judgment (the “Motion”) filed by General Motors Acceptance Corporation (“GMAC”). The Court, having reviewed and considered the Motion and the accompanying Memorandum of Law in support of the Motion, having reviewed ...
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ORDER By motion, the debtors seek turnover of excess funds held by the Chapter 13 trustee. This dispute arose when the insurer of the debtors’ 1992 Ford F150 pickup truck paid insurance proceeds to Ford Motor Credit Company (“Ford”) as lienholder of record after the truck was destroyed. This dispute concerns an alleged overpayment to Ford by the Chapter 13 trustee. The facts of t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND DECLARING AS MOOT THE TRUSTEE’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE came before the Court upon the Motion for Summary Judgment and Memorandum of Law in Support There...
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MEMORANDUM OPINION Before the Court is the Application under Rule 2016 for attorney’s fees of the Estate of James E. Nunley, Deceased, who was the Debtor’s original counsel in this case. The Application seeks compensation in the sum of $50,000.00. Due to the fact that counsel is now deceased, the Court considers it necessary to carefully review the Application and the entire file herein; ...
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OPINION A INTRODUCTION The instant dispute requires this court to apply the holding in Pioneer Investment Services Co. v. Brunswick Associates L.P., — U.S. -, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), to the case of a municipal creditor which belatedly filed a priority tax claim because it allegedly did not discover the Debtor’s pre-petition obligation until after...
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MEMORANDUM OPINION This matter came before the Court on an objection to discharge of certain debts pursuant to 11 U.S.C. § 523(a)(6). The creditor in this case, Rentrak Corporation (“Rentrak”), seeks to have Thomas Mitchell Forbes and Shirley A. Forbes’ (collectively referred to herein as the “Debtors”) obligations to Rent-rak liquidated. In addition, Rentrak seeks to have the Debtors’ obliga...
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*223 MEMORANDUM This adversary proceeding is before the court on a motion for summary judgment filed by the plaintiff, Margaret B. Fugate, the chapter 7 trustee (“Trustee”), wherein she requests the court to determine the rights of the parties to certain proceeds held by the Trustee arising from a prepetition settlement of the debtors’ personal injury lawsuit. Prior to the fi...
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The Plaintiff, the Committee of Unsecured Creditors of Tennessee Valley Steel Corporation (Committee), commenced this adversary proceeding on March 10,1995, with the filing of a complaint entitled “Complaint for Equitable Subordination or Reclassification of Claims and Other Relief’ (Complaint). 1 In its Complaint, the Committee avers (1) that the three Defendants, B.T. Commercial Co...
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INTRODUCTION Pursuant to section 542 of the Bankruptcy Code, the Chapter 7 Trustee requests that the Debtor/attorney turnover funds attributable to prepetition, personal-injury contingent-fee retainer contracts with his clients. The Debtor here moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that he had no prepetition right to payment under ...
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MEMORANDUM OPINION This matter comes on for hearing upon the complaint of Plaintiff, William E. Rutledge, Trustee of the Estate of Tulsa Industrial Facilities, Inc. (“TIFI”), against Verdigris Valley Economic Development Corporation, Inc. (“Verdigris”). TIFI and Verdigris have competing secured claims to the collateral of Precision Tubulars, Inc. (“Precision”). A trial was conducted on Ju...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on September 13, 1995, on the motion of Firstar Bank Madison, N.A. (“Bank”) to compel the Debtors, Robert H. Powell, Jr. and Emma Lou Ann Powell (“Debtors”), to return property to the bankruptcy estate, for an accounting, and to establish compensation for the Debtors. Appearances were noted in the re...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for trial on September 19, 1995, on the Plaintiff’s Complaint pursuant to 11 U.S.C. § 362(h). Facts On September 16, 1994, the Plaintiff purchased a 1985 Toyota Célica automobile from the Defendant for $4,167.86 (including tax). The ear had 121209 miles on it and Plaintiff, through cash and trade-in paid $2,259.50 down, and financed the balance of...
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ORDER Before the Court is the Motion to Permit Late Filing of Complaint Objecting to Discharge of Debtor, Joseph B. Hutchison, filed by Carpet Services, Inc. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding. Carpet Services, Inc. is a creditor of the debtor, Joseph Byms Hutchison, and instituted litigation against deb...
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MEMORANDUM OPINION This cause came before the Court for trial on May 8, 1995, upon the objections to exemptions and the amended complaint of the Chapter 7 Trustee, Soneet R. Kapila, In his amended complaint, the Trustee seeks to avoid and recover fraudulent conveyances pursuant to 11 U.S.C. §§ 544, 548 and Florida Statute § 726. The Court, having considered the testimony of the witnesses, the...
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*338 DECISION AND ORDER ON PLAINTIFF-DISBURSING AGENT’S COMPLAINT SEEKING RECOVERY OF UNPAID RENT, ETC. Heard on the Complaint of Charles Lovell, Esq., the disbursing agent appointed under the Debtor’s confirmed plan of reorganization, seeking recovery of unpaid rent, oil consumption charges, and taxes from the Defendant, Kevin J. Thornton Enterprises, Inc., d/b/a Rick’s Warehouse Liquors, Ltd....
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DECISION AND ORDER DETERMINING: (1) THAT THERE IS A DEBT; and (2) THAT SAID DEBT IS NON-DISCHARGEABLE Heard on the Complaint of American Title Insurance Company (“American Title”) to determine the dischargeability of a debt allegedly owed by the Debtor, George A. Marderosian, under 11 U.S.C. § 523(a)(4). American Title contends that Marderosian, as its agent, engaged in conduct that: ...
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MEMORANDUM OPINION This is the court’s decision on applications by the debtors-in-possession in both of the above cases to employ Mortenson & Associates, P.C., as accountants, and by First Jersey Securities, Inc. to employ Robinson, St. John & Wayne as its attorneys. 1 The United *141 States trustee and the Securities and Exchange Commission objected on the gro...
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ORDER ON DEBTOR’S MOTION FOR ORDER AUTHORIZING DISTRIBUTION OF PROCEEDS OF SALE OF ASSETS AND DEBTOR’S OBJECTION TO THE CLAIM OF THE INTERNAL REVENUE SERVICE The matters before the Court are Debtor’s Motion for Order Authorizing Distribution of Proceeds of Sale of Assets, and the Opposition thereto filed by the United States of America on behalf of the Internal Revenue Service; and Debtor’s O...
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ORDER DENYING CHAPTER IS CONFIRMATION Heard on August 17, 1995, on confirmation of Debtor’s Chapter 13 plan. The Debtor is employed as a wait person/bartender/housekeeper, and has gross monthly earnings of at least 1 $2,380. According to her own figures, the Debtor has net disposable income of $209 per month, and proposes to pay $200 per month into the plan for the first tw...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Upon the motion of Plaintiff, Noel Rodriguez, for default against the Defendant for failure to timely answer or otherwise plead, the Court having conducted a hearing after due notice, the Court, by separate order, having found the Defendant in default, held all the allegations of Plaintiffs Complaint confessed as true against the Defendant. The Cour...
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DECISION AND ORDER MAKING ADDITIONAL FINDINGS, AND AMENDING JUDGMENT Heard on May 4, 1995, on the Plaintiffs’1 Motion to Make Findings and/or Amend *777Judgment regarding our Decision and Order dated August 29, 1994. This litigation has been shuttling back and forth in the courts for more than eight years, at least five times before this Court, with two excursions to the District Court, before ...
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DECISION ON CONFIRMATION OF DEBTOR’S AMENDED PLAN AS MODIFIED AND ON OBJECTIONS TO CONFIRMATION The debtor in this Chapter 11 case is the owner of the Hyatt Regency Hotel property in Cincinnati, Ohio (hereafter the “subject property.”) The subject property is operated and managed by the Hyatt Corporation (“Hyatt”), pursuant to a Management Agreement entered into between debtor and Hyatt. ...
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The issue in this Chapter 13 proceeding is whether the debtors may classify their snowmobiles as motor vehicles entitled to the status of exempt assets. James and Anne Semrau, the debtors herein, are joint owners of two Polaris snowmobiles. The family automobile, a 1992 Chevrolet Corsica, has no equity, in that it secures obligations which exceed the car’s value. On the other hand, the sno...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Complaint To Determine Dis-chargeability Of Debt filed by Yvonne Deloris Albert (“Plaintiff’). A trial was held on March 7, 1995, at which time the Court took the matter under advisement. JURISDICTION The Court has jurisdiction over this proceeding. 28 U.S.C. § 1334. This is a core proceeding...
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MEMORANDUM OF DECISION Before the Court for determination is a Motion for Partial Summary Judgment filed by the Trustee in Bankruptcy, Steven Weiss (the “Trustee”) against the defendant, People Savings Bank (the “Defendant” or “Bank”) on Count I of the Complaint and on the Bank’s counterclaim. Through his Complaint, the Trustee seeks recovery of unauthorized post-petition transfers ma...
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MEMORANDUM OPINION Hearing was held May 17, 1995, on the motion of nonparty Stefan F. Tucker, Esq., for a protective order precluding the taking of Tucker’s deposition in connection with an adversary proceeding filed against Debtor John A. Andrews. Tucker alleged that any relevant information that he might possess was protected by the attorney-client privilege. Plaintiffs argued that the info...
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*657MEMORANDUM OPINION This proceeding comes before the court on debtors’ objection to Cénit Bank’s unsecured proof of claim for a deficiency following the sale of collateral. The issue is whether Cen-it’s notice of a private sale of a repossessed collateral complied with section 8.9-504 of the Virginia Code. For the reasons stated in this opinion, the objection will be overruled and the claim all...
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MEMORANDUM & ORDER The above-entitled action arises by Complaint filed on April 24, 1995, by the several plaintiffs, LaVern C. Neff, Juanita I. Neff, Fred Hanson, Randi Lou Hanson, Herbert Lilleberg, Schulte & Enget, agents and attorneys for Missionaries of Our Lady of the Prairie (Plaintiffs). By the Complaint, the Plaintiffs are seeking to have an obligation for restitution in the amoun...
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MEMORANDUM & ORDER Before the Court for consideration is confirmation of the Debtors’ First Modified Chapter 13 Plan filed August 14, 1995, incorporating the terms of a stipulation with FmHA also filed August 14, 1995. This case was commenced on January 5, 1995, with confirmation of an earlier plan continued pending revisions. With a revised plan not forthcoming, FmHA advanced a ...
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DECISION AND ORDER GRANTING MOTION TO REOPEN ADVERSARY PROCEEDING TO AMEND DEFAULT JUDGMENT PRELIMINARY STATEMENT This matter comes before this Court 1 upon Prasad Chalasani’s (“Debtor” or “Defendant”.) motion to reopen his chapter 7 ease in order to bring a motion to reopen the instant adversary proceeding to vacate the default judgment. Additionally, Society for ...
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MEMORANDUM OPINION This is the court’s decision on whether Mannon Excavating, Inc. (hereinafter “Man-non”) has transferred its claim to Somerset Capital, L.L.C. (hereinafter “Somerset”) by *157accepting the check offered by Somerset. After Somerset filed a Notice of Transfer of Claim, Mannon objected on the grounds that the check made out to Mannon and deposited by Mannon was mistakenly believe...
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MEMORANDUM OPINION The case at bar presents two questions for decision: whether the Chapter 11 debtor may sell nearly all its assets under 11 U.S.C. § 363(f) before filing a disclosure statement and liquidation plan, and if the sale is permissible under § 363(f), whether the Court can enjoin a creditor of the debtor from initiating a collection action against the third-party buyer. As...
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MEMORANDUM OPINION This proceeding requires us to determine, as a threshold matter, whether this Court has jurisdiction to hear a state-law action that the debtor commenced after the order confirming the debtor’s plan had become irrevocable and after a final decree had been entered, closing this Chapter 11 case. For the reasons that follow, we conclude that we lack subject-matter juri...
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MEMORANDUM Before me is a Complaint filed by plaintiff The Official Committee of Unsecured Creditors, on behalf of Intershoe, Inc. (the “Committee”) seeking to recover $515,000.00 in payments made by debtor Intershoe, Inc. (“Intershoe”) to defendant Mellon Bank, N.A. (“Mellon”) pursuant to Section 548(a)(2) of the Bankruptcy Code, together with prejudgment interest. For the reasons stated below...
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MEMORANDUM OPINION AND ORDER ON MOTION OF FULLEN DOCK AND WAREHOUSE, INC. TO DISMISS CASE At issue in this core proceeding1 is whether a corporation whose corporate charter has been revoked administratively by the Tennessee Secretary of State has standing as a corporation to file a chapter 11 bankruptcy petition. Fullen Dock and Warehouse, Inc., the holder of a general unsecured claim against the ...
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MEMORANDUM OPINION This opinion deals with an objection by OmniAmerican Federal Credit Union (“Om-niAmerican”) to its treatment under the Chapter 13 plan of Debtor Janice W. Hollins (“Hollins” or “Debtor”). OmniAmerican, as an oversecured car creditor objects to being paid out under Debtor’s plan on its secured claim at a rate of 6% when its contract rate is 11.5%. The only interest r...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT Prime Commercial Corporation is an additional named assured under policy no. ZKQ9200037/P1147-1-92 (the “Policy”) issued by certain underwriters at Lloyd’s of London (the “Underwriters”). The Policy covers losses arising from employee theft. In the first half of 1992, Prime...
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*231 MEMORANDUM OPINION AND ORDER ON DEBTOR’S “OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE AND MOTION TO DETERMINE TAX LIABILITY UNDER 11 U.S.C. § 505” AND “INTERNAL REVENUE SERVICE’S OBJECTION” This core proceeding 1 came on for hearing on debtor’s Objection to the Claim of the Internal Revenue Service. The Debtor, Arthur M. Townsend, III (“Debtor”) and the Interna...
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ORDER Brenda Louise Silvers, herein Debtor, filed a petition for relief under Chapter 7 of the Bankruptcy Reform Act of 1978. Among the creditors listed was her former spouse, Ralph Silvers. Her former spouse filed this adversary action to seek determination that the debts owed by Debtor to him, as a result of a decree of dissolution entered by the state court, were nondisehargeable under 11 ...
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MEMORANDUM DECISION GRANTING MOTION TO LIFT THE AUTOMATIC STAY Secured creditor Nicholas Grammatikakis a/k/a Nicholas Grammas (“Grammas”) moves for an order pursuant to 11 U.S.C. § 362(d)(1) and (2) lifting the automatic stay in order to permit Grammas to conduct a sale of a parcel of real property belonging to the Debtor in accordance with a judgment of foreclosure. The petition under Chapter 11...
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OPINION Contending that this single asset real estate case has been filed in bad faith, Citizens Bank of Massachusetts (the “Bank”) moves for dismissal, abstention or relief from automatic stay. I deny the motion and reject the good faith filing doctrine created by courts under the Code. Good faith, like apple pie, is difficult to oppose. The good faith of this doctrine, however, has ...
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ORDER ON MOTION TO APPOINT TRUSTEE THIS MATTER is before the court on the motion of Edmond Opler, Jr., Patricia Ann Opler, The Edmond Opler, Jr. Living Trust, and the Patricia Ann Opler Living Trust (Oplers) for an order appointing a chapter 11 trustee in this case. The Oplers’ motion was joined by Jeff Wanamaker, and was opposed by the debtor, Rivermeadows Associates, Ltd. At the hea...
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OPINION Introduction. Before the Court is the Motion of Mary Scatton, Executrix of the Estate of John P. Scatton (“Movant”) for relief from the Automatic Stay. The Motion is opposed by the Debtor S.B. Properties, Inc. (“Debtor”). A hearing was held on March 16, 1995, and the parties have each submitted legal memoran-da in support of their respective positions. For the reasons...
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*7 MEMORANDUM OF DECISION Presently before the Court is the Internal Revenue Service’s (IRS) motion for relief from the Code § 362 automatic stay to offset a tax refund owed to the Debtors. Factual Background Gary Lawson and Linda Lawson (the “Debtors”) filed their petition for relief under chapter 13 of Title 11 of the United States Code on February 10, 1995. On the date the petition...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on the Complaint of Bonnie L. Roberson (Plaintiff or “Mrs. Roberson”). Mrs. Roberson requests that this Court abstain from determining the dischargeability of certain claims alleged by her against her former husband, Darrell R. Roberson (Debt- or or “Mr. Roberson”), who was granted a discharge in his Chapter 7 case No...
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ORDER This matter comes before the Court on a Motion to Extend Time for Filing Complaint to Determine Dischargeability of Debt presented by Gary Stern, Inc. Pension Trust (hereinafter “Stern”). Arthur and Gweni-vear James (hereinafter “the Debtors”) have opposed this Motion, arguing that no cause exists for granting Stern this type of extension. The issues involved herein constitute a...
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MEMORANDUM DECISION The debtors in this case, Kansas Psychiatric Institutes, Inc., Psychiatric Health Centers of Greater Kansas City, Inc., Overland Associates, L.P., and Overland Park Hospital, Inc., filed for protection under Chapter 11 of the Bankruptcy Code on October 27, 1994.1 The Court entered an order for joint administration of the cases on January 5, 1995. NATURE OF THE CASE On Janu...
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ORDER OVERRULING OBJECTION TO CONFIRMATION 1 Debtor petitioned for relief under Chapter 13 on November 3, 1994, listing Ann T. Drummond, his former wife, as a general unsecured creditor. Drummond filed a proof of claim indicating that she held an unsecured nonpriority claim for $2,500 based on a divorce decree entered December 17, 1993. Debtor’s original Chapter 13 pla...
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MEMORANDUM OF DECISION 1 The dischargeability questions before the Court arise on cross motions for summary judgment.2 Both parties agree that no issue of material fact remains for determination and the questions are ripe for summary judgment. Sherry and Steven Good were married on June 19,1976, and divorced on June 6, 1991.3 Sherry filed a petition for Chapter 7 relief on March 2, 1992. Sher...
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ORDER GRANTING BENEFICIAL KANSAS, INC.’S MOTION FOR DETERMINATION OF SECURED STATUS1 Before the debtor Joyce Ann Cannon filed this Chapter 7 case on September 12, 1994, creditor Beneficial Kansas, Inc. (“Beneficial”) sued her in state court to collect on a promissory note.2 However, in the state court suit, *730Beneficial failed to demand foreclosure of its U.C.C. security interest in the followi...
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MEMORANDUM OF OPINION This contested matter calls upon the Court to interpret the word “spouse” as used in § 302 of the Bankruptcy Code (11 U.S.C. § 302), which governs the filing of a joint petition in bankruptcy. Specifically, the issue before the Court is: Can a same sex couple qualify as a debtor and spouse within the meaning of § 302? The Court finds this matter to be a core proceeding p...
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MEMORANDUM OPINION 1 This adversary proceeding raises an objection to discharge under 11 U.S.C. § 727(a)(2)(A), 2 which denies discharge if a debtor transfers property within one year of the filing of his bankruptcy petition with the intent to hinder, delay, or defraud a creditor. The parties ask the Court to determine this matter on cross motions for summar...
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MEMORANDUM OPINION AND ORDER CONFIRMING SECOND AMENDED PLAN FOR ADJUSTMENT OF DEBTS THIS MATTER comes on for confirmation of the Second Amended Plan for Adjustment of Debts dated April 10, 1995 filed by the City of Colorado Springs Spring Creek General Improvement District (District). Colorado BondShares objects to confirmation. Having heard the arguments of counsel, reviewed the pleading...
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ORDER GRANTING “PLAINTIFF’S MOTIONÍS] FOR SUMMARY JUDGMENT ...” Now before the Court is a motion for summary judgment and brief in support filed by the plaintiff, and several documents in opposition thereto filed by the defendant. Upon consideration thereof, and of the record herein, this Court determines, concludes and orders as follows. On January 3, 1995, debtors Roy Corbin an...
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MEMORANDUM OPINION On October 1, 1990, Piper Trust Company (“Piper”) entered into an agreement with Denman & Co. (“Debtor”) whereby Debtor would administer the assets of the Denman Commingled Bond Fund (the “Denman Fund”). On October 22, 1990, Piper entered into a trust agreement (the “Trust Agreement”) with the State of Florida (“Florida”). Pursuant to Florida’s directions, Piper invested $100,0...
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The matter before this Court is the confirmation of the Second Amended Plan of Reorganization filed by Gramercy Twins Associates, debtor and debtor in possession, (the “Debtor”), in its chapter 11 case. Massachusetts Mutual Life Insurance Company (“Mass Mutual”), the debtor’s largest secured and unsecured creditor objects to the confirmation of the plan. For the reasons discussed below, this Co...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Trustee’s Objection to Exemption, and the Debtor’s Brief in Opposition. This Court has reviewed the arguments of counsel, exhibits, as well as the entire record of the case. Based upon that review, and for the? following reasons, the Court finds that the Trustee’s Objection to exemptions claimed under Ohio Revised Code § 2...
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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 Bankruptcy Rule 4003(d). A Hearing was held on the Request of Beneficial Mortgage Co., and the Parties were instructed to file briefs. The Court has reviewed the documents submitted and the relevant case law, as well as the entire record in this matter. Based up...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Complaint to Determine Dis-chargeability of Debt, Motion for Summary Judgment, Memorandum in Support, and Defendant’s Memorandum in Opposition. The Court has reviewed the arguments of Counsel, exhibits, as well as the entire record of the case. Based upon that review and for the following reasons, the Co...
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OPINION A INTRODUCTION Presently to be decided in this contentious bankruptcy case is the issue of how to distribute the assets of the Debtor subsequent to an auction sale of its primary real estate asset. Two questions having some general application arise, namely (1) what is the nature of a recovery under 11 U.S.C. § 506(c) and where does such as recovery fall in a dist...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the “Objection of Trustee to Debtor[’]s Claimed Exemption.” The Debtor filed a response to the Trustee’s objection, and the Court heard the matter on August 15, 1995, following which the Court took the matter under advisement. II. FACTS The parties do not contest the material facts, although, as will be discussed mor...
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RULING ON MOTION OF DEFENDANT, ORIX CREDIT ALLIANCE, INC., TO DISMISS COMPLAINT I. ISSUE John J. O’Neil, Jr., Trustee of the Chapter 7 Estate of Northeastern Contracting Co. (the “Debtor”), brought a complaint pursuant to 11 U.S.C. §§ 547(b) 1 and 550(a)(1) 2 to set aside as preferential two payments which the Debtor made to the defendant, Orix Credit Alliance, Inc. (“Orix”) on a de...
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MEMORANDUM OF OPINION AND ORDER This case came on for trial on the 8th day of June, 1995, on Plaintiffs Complaint to Determine Dischargeability of certain debts. Plaintiff and Defendant were married in October of 1992 and divorced August 8, 1994. *175 This complaint seeks non-dischargeability of certain joint debts, or debts otherwise assumed by Defendant under a Decree o...
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ORDER DENYING IN PART AND SUSTAINING IN PART DEBTOR’S OBJECTION TO THE PROOF OF CLAIM OF THE UNITED STATES TRUSTEE Debtor filed a Chapter 11 bankruptcy petition on September 14, 1994. The ease was subsequently converted to Chapter 7 on July 14, 1995. The United States Trustee (the “UST”) filed its proof of claim for $4,250.00 on July 17, 1995. 1 Debtor has not formally obje...
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MEMORANDUM AND ORDER ON MOTIONS OF PARTIES FOR SUMMARY JUDGMENT The Motions of the parties for summary judgment are before the Court for determination upon the following STIPULATIONS OF FACTS: 1. On October 3, 1994, James and Christine Briggs filed a petition for relief under Chapter 7 of Title 11 of the United States Code. 2. Raymond J. Obuchowski was appointed Interim Trustee, thereafter duly ...
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MEMORANDUM OPINION This matter came on for trial on June 19, 1995 on the trustee’s complaint seeking avoidance of a preferential transfer under 11 U.S.C. § 547(b). The court has considered the evidence, the memoranda, and the arguments of counsel and makes the following determinations.1 I. Facts Defendant, First Tennessee Bank National Association (“First Tennessee”) is a prepetition judgment-c...
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MEMORANDUM OPINION This adversary proceeding was brought by the debtor as plaintiff to determine the conflicting claims to a fund of $250,000 being held by the debtor from the sale of real property assets that had previously been the subject of a failed construction contract. The debtor is a mere stakeholder in this regard. The parties in interest are the *64FDIC acting for the Bank that had bee...
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MEMORANDUM OPINION Dewey and Pauline Durrett filed for chapter 11 bankruptcy relief on November 20, 1990. The debtors proposed their first chapter 11 plan on May 2, 1991 and subsequently amended the plan on five separate occasions. On February 7,1992, at the conclusion of the confirmation hearing on the debtor’s fifth amended plan, confirmation was denied and the case was convert...
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DECISION BARRING DEBTOR’S DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(4)(A) This is an adversary proceeding in which the plaintiffs, Herman Castillo and Janet Castillo (the “Plaintiffs” or the “Castillos”) seek to bar the discharge of the Debtor, Aníbal Casado, M.D. (the “Debtor”) pursuant to 11 U.S.C. Section 1 727(a)(4)(A). 2 The Plaintiffs claim that the Debtor made false statements in his ...
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*274 MEMORANDUM OPINION This matter comes before the Court on the Motion of Phillip Levey, Trustee (“Trustee”), To Extend Time For Filing Objections To Exemptions. On November 25, 1994, the Debtor, Sam DiGregorio (“Debtor”), filed a voluntary petition under Chapter 11 of the Bankruptcy Code (Title 11 U.S.C., “Code”). The docket reflects that on December 12, 1994, the Debtor filed...
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ORDER This matter is before the Court on plaintiff Mare Florio’s adversary complaint against debtor Laurie Florio, which requests the Court to find that Laurie’s 1 indebtedness to him is nondischargeable, pursuant to 11 U.S.C. § 523(a)(15), and requests the Court to deny Laurie discharge, pursuant to 11 U.S.C. § 727 (1988). Laurie counterclaims, alleging that Marc owes her child support and r...
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DECISION ON DEFENDANT-DEBTOR’S MOTION TO DISMISS THE ADVERSARY PROCEEDING FOR PLAINTIFF’S FAILURE TO SERVE THE SUMMONS AND COMPLAINT UPON THE DEBTOR Plaintiff Esterina Mazzone (“Plaintiff’) commenced an action under Bankruptcy Code section 727 objecting to the discharge of the debtor-defendant, James Osebach (“Debtor”). The Debtor has moved to dismiss this action pursuant to Rule 12 of the Federa...
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*491 MEMORANDUM OPINION The matter before the court is an action by the Committee of Creditors Holding Unsecured Claims and Committee of Creditors Holding Unsecured Claims as Estate Representative of Papercraft Corporation (hereafter collectively “creditors’ committee” or “committee”) for equitable subordination and objecting to the claim of Citicorp Venture Capital, Ltd. (hereaf...
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OPINION In late December, 1991, Ostrom-Martin, Inc. (OMI), a grain company with several facilities in neighboring communities failed, and in early 1992 an involuntary petition under Chapter 7 of the Bankruptcy Code was filed against it. This adversary proceeding, brought by the Chapter 7 Trustee against the FIRST NATIONAL BANK OF CHIL-LICOTHE (CHILLICOTHE BANK) and the PRINCEVILLE STATE B...
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These reciprocal motions for summary judgment raise the issue of whether a principal of a corporation who is an owner, officer, director and employee of that corporation who elected to forgo her usual pay in favor of repayments of loans she had extended to the corporation, must disgorge such repayments as voidable preferences under 11 U.S.C. § 547, when the corporation subsequently becomes a de...
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This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(I), and was tried to the Court on August 30, 1995. The only witness was the Debtor-plaintiff, Randy A. Melton. Having considered the pleadings, testimony, other evidence, arguments, and applicable provisions of law, the following constitutes the Court’s findings of fact, conclusions of law, and decision. Although the facts of thi...
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OPINION The issue before this Court arises out of three separate Chapter 11 cases which have not been consolidated. All three involved debtors engaged in farming operations. The first case is that of Kevin W. Emerick and Sherry Ann Emerick (EMERICKS). The other two cases are Simon Kenton Farms, Inc. (KENTON FARMS) and Kevin W. Em-erick Farms, Inc. (EMERICK FARMS). Kevin Emerick is the sole shareh...
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MEMORANDUM OPINION THIS CAUSE is before the Court upon a Complaint for Turnover filed by the debtors against the Internal Revenue Service (IRS). The IRS has responded and affirmatively requests relief from the automatic stay to allow the United States to offset a portion of its claim in this bankruptcy proceeding against the debtors 1994 overpayment. The debtors resist the motion and assert tha...
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MEMORANDUM 1. INTRODUCTION The matters before the Court are the Motion for Summary Judgment and the Motion for Judgment on the Pleadings, filed by *63 Dean Witter Reynolds Inc. (“Dean Witter”) with respect to its Complaint and the Debt- or’s Counterclaim, respectively. 1 The Debtor opposed both motions. The Court heard the motions on April 25, 1995, following ...
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MEMORANDUM OPINION Summary The Plaintiff in this adversary proceeding alleges that he lost $14,280 as a result of misrepresentations made by the Debtor/Defendant, and requests a judgment for fraud damages and non-dischargeability. The Defendant has filed a motion for judgment on the pleadings (which will be treated as a motion to dismiss) on the grounds that the Plaintiff does not ha...
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MEMORANDUM OPINION This matter is before the Court on objections to the debtors’ claimed homestead exemption. Objections have been filed herein by the Florida Department of Insurance, as receiver of Dealers Insurance Company (“FDI”), Hugo Carter, et al. (“Carter”), Dealers Underwriting Services, Inc. (“DUS”), and Thomas E. Bulleit, Jr., Chapter 11 Trustee (“the Trustee”) in this case. The Cou...
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DECISION AND ORDER DENYING SUMMARY JUDGMENT TO PLAINTIFF, AND GRANTING SUMMARY JUDGMENT TO DEFENDANT, FEDERAL HOME LOAN MORTGAGE CORPORATION PRELIMINARY STATEMENT This matter comes before the Court1 upon motion (“Motion”) by Hands Trien & Beck, P.C. (“HTB” or “Plaintiff’) for summary judgment on its first claim for relief against Federal Home Loan Mortgage Corporation (“FHLMC” or “Defendant”) p...
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ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS This matter came before the Court July 12, 1995, for hearing on the amended motion of the Defendants, Joseph and Phyllis Forna-baio (the “Defendants”), to dismiss this adversary proceeding and/or grant summary judgment. The Chapter 7 Trustee, Soneet Kapila (the “Trustee”), filed a two count complaint against the Defendants seeking to deny...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon Michael Alan Wester’s (“Former husband”) complaint pursuant to 11 U.S.C. § 523(a)(5) to determine the dischargeability of attorney’s fees. Former husband contends that the award of attorney’s fees to former wife’s attorney is not in the nature of support, but rather, a part of an equitable distribution of property....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW These proceedings are before the Court upon the complaint objecting to discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A) and 727(a)(4)(A) filed by Trustee Gordon P. Jones (Trustee), and the complaint objecting to discharge and seeking exception from discharge pursuant to 11 U.S.C. §§ 727(a)(4)(A), 523(a)(5), and 523(a)(15) filed by Theresa Phillips (Forme...
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ORDER DECLARING SERVICE OF PROCESS TO BE INEFFECTIVE This cause came on to be heard at pre-trial conference upon the request of the debtor for entry of default judgment against Citibank. It appears that the service upon the defendant was by United States mail addressed to the address of the banking institution. The Bankruptcy Reform Act of 1994, § 114, Service of Insured Depository Institution a...
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ORDER This matter came before the Court on June 6, 1995 on a Motion to Dismiss filed by Patrick Houghton and PPH Corporation and the trustee’s objection thereto as well as a Motion for Summary Judgement filed by the trustee and the defendant’s objection thereto. This is an action brought pursuant to New Hampshire state fraudulent transfer law made applicable under § 544(b) of the Bankruptcy Code...
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RULING ON MOTION FOR RELIEF FROM STAY I. ISSUE The R.J. Carbone Company (“Carbone”) seeks in this Chapter 7 case a modification of *425 the stay imposed by 11 U.S.C. § 362(a) in order to proceed with a pending prepetition state-court action to enjoin David Timothy Nyren, the debtor, from violating a covenant not to compete (“covenant”). The debtor and the Ch...
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ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing on September 12, 1995 on the Motions for Summary Judgment on Trustee’s Seventh Objection to Claims (the “Motions”) filed by Sophia Bagdadi de Leon (“Sophia”), Monica Leon Bagdadi (“Monica”), and Roberto Leon Bag-dadi (“Roberto”) (collectively the “Leons”). The Court has considered the Motions, the Memorandum in Opposition...
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MEMORANDUM OPINION This matter is before the court on the debtor in possession’s objection to the $100,-991.25 secured claim filed by Colonial Farm Credit, ACA (“Colonial Farm Credit”). The claim has been assigned to Lloyd C. March, Jr. (“March”) and his wife, June 0. March (collectively, “the Marches”).1 The issue is whether a mistaken quotation of the payoff amount, and the acceptance of that a...
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MEMORANDUM ON DEFENDANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT The Plaintiff, Mary Tullock, initiated this adversary proceeding on June 23, 1995, seeking a determination of the dischargeability of a debt pursuant to 11 U.S.C.A. § 523(a)(2)(A) (West 1993 & Supp.1995). 1 The summons was issued by the clerk on June 29,1995, and the Certificate of Service filed by the Plaintiff...
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MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART CREDITOR’S MOTION TO ALLOW PROOF OF CLAIM AS TIMELY FILED OR FOR ALLOWANCE OF TIMELY FILED INFORMAL PROOF OF CLAIM THIS CAUSE came on before the Court on August 18, 1995, on Aptco, Inc.’s Motion To Allow Proof of Claim as Timely Filed or For Allowance of Timely Filed Informal Proof of Claim, and the Court, having considered the ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed by Gerald and Geraldine Gates (“Debtors”) on May 12, 1993, for an order pursuant to § 502(b)(1) 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.”) seeking to disallow Algie Raines’ (“Raines”) claim # 3...
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*434 MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court for hearing on the motion of Gregory John Rien-hardt and Laurie Ann Rienhardt (“Debtors”) seeking confirmation of their Chapter 13 Plan and the objection of Chrysler Credit Corporation (“Chrysler”) to Debtors’ proposed treatment of its allowed secured claim pursuant to § 13...
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DECISION AND ORDER ON MOTION TO DETERMINE SUFFICIENCY OF SERVICE This matter comes before the court upon the motion to determine sufficiency of service of process filed by Bryan Ross (“trustee”), trustee of the chapter 7 estate of the debtor, Crown Hotel (Washington) Corporation. The defendant in this matter, Rainbow Travel Agency, is a foreign entity located in Jed-dah, Saudi Arabia....
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO MODIFY THE AUTOMATIC STAY The matter before the Court involves the analytically complex, related issues of how to *887 create a security interest in book-entry Treasury securities, and how to describe that interest in a security agreement. Bank of America Illinois, formerly known as Continental Bank N.A. (the “Bank”), moves to m...
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SUA SPONTE ORDER RE DEBTOR’S “APPLICATION FOR WAIVER OF THE CHAPTER 7 FILING FEE FOR INDIVIDUAL WHO CANNOT PAY THE FILING FEE IN FULL OR IN INSTALLMENTS” COMBINED WITH RELATED ORDERS AND NOTICE OF THE ENTRY THEREOF In this consumer no-asset chapter 7 case the instant matter before the Court arises out of an application filed by the above-named debtor, Linda L. Spoon (“Debtor”), styled “Application...
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ORDER Currently before the Court in this matter is a Motion to Dismiss or in the Alternative Motion for Summary Judgment, filed by Vernon Thompson Musgrove (hereinafter “the Debtor”). The Debtor’s motion comes as defense to a Complaint to Determine Dis-chargeability and Objection to Discharge filed by Everett Morgan and Libby Morgan (hereinafter “the Morgans”). As such, these matters ...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiff, American General Finance, seeking a determination by this Court that certain debts owed to it by the debtor/defendant, Mark A. Taylor (hereinafter “debtor”), are nondischargeable pursuant to 11 U.S.C. § 523(a)(6) for the willful and malicious conversion of property subject to the plaintiffs purchase ...
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DECISION Lacy G. Newman (“Newman”) commenced this adversary proceeding to recover from Bank of New England Corporation (“BNEC”) funds held in an escrow account which represent amounts to which he claims he became entitled when BNEC terminated his position for reasons other than cause. He asks that I determine his entitlement to recovery and the validity, extent and priority of his lien upon the...
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MEMORANDUM DECISION AND ORDER DISMISSING CASE FOR BAD FAITH FILING This matter came before the Court on May 10 and 15, 1995 upon a Motion for Dismissal for Bad Faith Filing (“Motion for Dismissal”) filed by Aetna Casualty and Surety Company (“Aetna”) 1 *384 Upon consideration of the evidence adduced at the hearing, the motion, briefs and other documentation s...
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OPINION We consider here the final resolution of debtor’s motion for reconsideration of our ruling on debtor’s objection to the proof of claim filed by the Internal Revenue Service. As a corollary, we also consider debtor’s supplemental motion, characterized as a motion “to declare government’s exhibits inadmissible in evidence.” FACTS AND PROCEDURAL HISTORY On November 2, 1992, Robert J....
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*522DECISION AND ORDER The matter before the court arises as a result of the motion by the trustee in bankruptcy for the above-captioned estate for a determination as to the secured status of certain judgment liens with respect to certain real property located in the State of New York which became property of the estate under 11 U.S.C. § 541(a)(5)(A). There are of record in New York State three ju...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING EXEMPTION LITIGATION This contested matter concerns the debtors’ right to a homestead exemption in real estate purchased by the debtors less than ten months before the fifing of their Chapter 7 petition. The debtors value the residence at $100,000, and it is encumbered by a mortgage of $35,000 in favor of Community National Bank. The t...
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DECISION AND ORDER The above-captioned adversary proceedings are before the court on a stipulation of facts filed by the parties to the proceeding, oral argument in Roanoke, Virginia, on September 12, 1995, and the written memoranda of authority filed by each party in support of their respective positions. The issue is the dischargeability of indebtedness of the debt- or, K. Robin Laing (herein...
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MEMORANDUM The facts of the instant matter are straightforward and undisputed. THOMAS J. DOUGHERTY and HELEN D. DOUGH-ERTY (“the Debtors”) filed a joint Chapter 13 bankruptcy case on November 17, 1994. At that time, the Debtors had failed to file federal income tax returns for tax years 1990 and 1991. During the course of their case, the Debtors mailed their 1990 and 1991 returns to the INTERNA...
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MEMORANDUM OF DECISION This matter came before the court on an adversary proceeding filed by Donald L. Dionne, as Trustee, seeking turnover of funds held by the debtor, Paul Kenneth Harless, in a “rollover” Individual Retirement Account (IRA). The court has reviewed the documents on file, including the parties’ Joint Stipulation of Facts, and finds the Trustee’s request should be DENI...
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MEMORANDUM This matter came before the Court on May 9, 1995, for hearing on NBD Bank, NA’s [“NBD”] objection to the confirmation of debtors’ Chapter 13 plan. NBD’s objection involves the valuation of collateral to be retained by the debtors under the terms of their plan. NBD asserts that the proper valuation of its security, a 1990 Ford Tempo, is the retail value. The Trustee and the ...
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MEMORANDUM OPINION Defendant S & T Bank (hereinafter “S & T”) has brought a motion to dismiss the complaint against it and all other defendants. The chapter 7 trustee, plaintiff herein, opposes the motion. The chapter 7 trustee has brought a motion to reconsider a prior order of court and seeks leave to amend certain counts of its complaint to add an additional cause o...
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MEMORANDUM OPINION AND ORDER SUSTAINING OBJECTION TO EXEMPTIONS Antonio Zamora, one of the co-debtors in this Chapter 7 case, is a sole practitioner attorney who also owns and manages a small marina business. He seeks to exempt receivables from his law practice and certain money in bank accounts which were derived from either his law practice or from the operation of the marina. The Chapter 7...
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ORDER DENYING DEBTOR’S OBJECTION TO CLAIM The Debtor, Sharlene Fernandez, filed her Chapter 13 petition on November 22, 1994. Hawaii’s State Department of Taxation (“Hawaii”) filed a proof of claim on April 11, 1995, asserting a priority claim in the amount of $4,176.32 for state income tax. The Debtor sold her residence in Hawaii on November 26, 1990, and deferred the gain realized on the sa...
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ORDER ON OBJECTION TO CLAIM # 12 OF F.D.I.C. This is a Chapter 7 liquidation ease originally commenced by voluntary Petition under Chapter 13 on October 11, 1989, later converted and then consolidated with Suneoast Equity Investment, Inc. f/k/a Sun Equities, Inc. (Suneoast). The matter under consideration is an Objection to Claim # 12 of the F.D.I.C. The allowability of the claim filed as...
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ORDER DENYING JURY TRIAL The Debtor/Defendant, Robert G. Schmidt (“Schmidt”) has filed a demand for a jury trial in an adversary action filed by creditor Kirk Jaster (“Jaster”). Jaster’s complaint seeks to revoke Schmidt’s discharge under § 727(d) on the stated ground that Schmidt knowingly and fraudulently concealed an ownership interest in “Hytech Environmental Services, Inc.” Schm...
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ORDER ON MOTION TO DISMISS CHAPTER 11 CASE OR FOR RELIEF FROM AUTOMATIC STAY THIS IS a Chapter 11 case filed by Springs Plaza Associates, L.P. (Debtor). *49 The Debtors right to seek rehabilitation under this Chapter is challenged by Aetna Life Insurance Company (Aetna). The Motion to Dismiss is based on the contention of Aetna that this Chapter 11 Petition was filed in bad faith which in ton...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a dismissed Chapter 11 case and the matter before the Court is a Complaint filed by River Ranch, Inc. (Debtor) against Outdoor Resorts River Ranch Inns and Cottages Condominium Associations, Inc. (Inns and Cottages) and R & R Trading Post, Inc. (R & R) (collectively, Defendants). In light of the fact that the issues were ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This is a Chapter 7 liquidation case and the matter under consideration is a claim to determine the non-dischargeability of a debt asserted by the Securities And Exchange Commission (SEC). The claim is presented in a one Count Complaint and is based on the contention that Paul A. Bilzerian (Debtor) obtained money by false pretenses, a false representation, or a...
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ORDER ON RENEWED MOTION TO IMPOSE SANCTIONS THIS IS a reopened Chapter 7 case and the matter under consideration is a Renewed Motion to Impose Sanctions Against Bay Gulf Federal Credit Union and Creditor’s Counsel, William Wilhelm, Esquire, filed by the Debtor. The facts which appear from the record including facts set forth in the documents attached to the Motion are without dispute and could ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on for consideration upon Plaintiffs Motion for Summary Judgment. This Court has considered all arguments and evidence consistent with a ruling on a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (holding the standard of proof in sum *53 mary judgment ruling...
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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 Stephen L. Meininger (Trustee), who seeks to set aside certain transactions by Thomas Wherrett Miller (Debtor). The Trustee’s claim for relief is set forth in his five Count Complaint. In Count I the Trustee seeks to avoid the fraudulent tran...
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ORDER ON MOTION FOR CONTEMPT THIS is a yet-to-be confirmed Chapter 11 case and the matter presently before the Court is a Motion for Contempt filed by Aetna Life Insurance Company, (Aetna) the holder of a mortgage on the single asset of Springs Plaza Associates, L.P., (Debtor) a shopping center located in Naples, Florida. In its Motion, Aetna seeks the holding of the Debtor in contempt for the fai...
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ORDER ON MOTION FOR RECONSIDERATION THIS is a Chapter 7 liquidation case and the matter before the Court is a Motion for Reconsideration of this Court’s Order dated May 30, 1995 filed by James Orr, the Chapter 7 Trustee (Trustee) in the above captioned Chapter 7 case. The Motion is filed pursuant to Fed.R.Civ.Pro. 60(b) as adopted by F.R.B.P. 9024 and is based on the allegation that the Order whic...
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ORDER ON MOTION TO DETERMINE TRUSTEE’S ENTITLEMENT TO POSSESSION OF UNITED STATES MAIL THIS IS presently a Chapter 7 case and the matter under consideration is a Motion to Determine Trustee’s Entitlement to Possession of United States Mail filed by the Debt- or, Calania Corporation (Debtor). This case originally was filed as a Chapter 11 case on February 16, 1993. On March 18, 1994, an Order wa...
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ORDER ON MOTION FOR SUMMARY JUDGMENT In this Chapter 7 liquidation case, Howard Morten Harris (Debtor) claimed as exempt his interest in Howard M. Harris M.D., P.A. Profit Sharing Plan (Plan). On October 6, 1994, Bankers Trust Company, as Trustee for Marine Contract Corporation, Marine Contract Trust (Bankers Trust), challenged the Debtor’s claim of exemption on the grounds that the Profi...
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*1012 ORDER ON OBJECTIONS TO CLAIMS THIS IS a Chapter 11 case filed by Crown Auto Dealerships, Inc., d/b/a Crown Daihat-su, d/b/a Crown Honda, d/b/a Crown Nissan, d/b/a Crown Suzuki, d/b/a Crown Ferrarri, d/b/a Crown Jaguar, d/b/a Crown Pontiac-GMC Truck (Crown). Crown filed its Voluntary Petition for Relief under Chapter 11 on November 12, 1993, and currently is operating its bu...
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OPINION The issue before the Court is whether the Debtor may use his wild card exemption under 735 ILCS 5/12-1001(b) to exempt the proceeds from the sale of a business. The Debtor, Dennis E. Gullo, Jr., filed a petition pursuant to Chapter 7 of the Bankruptcy Code on July 11, 1995. He is currently unemployed. In October 1994, the Debtor sold a business in Galesburg, Illinois, to Brad Price for $...
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DECISION ON MOTION TO DISMISS Barbara Jennings a/k/a Barbara Ashe (“Debtor” or “Defendant”) has moved under Fed.R.Civ.P. 12(b)(6), made applicable hereto by Fed.R.Bankr.P. 7012, to dismiss an undated amended complaint filed by Helen L. *112 Wells (“Plaintiff’), an attorney who is representing herself in this lawsuit. The amended complaint contains two causes of action. Th...
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MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT I. INTRODUCTION In this adversary proceeding (hereinafter referred to as the “Dischargeability Action”) the Plaintiff, Federal Trade Commission (hereinafter referred to as the “FTC”), seeks to have a certain debt allegedly owed to it by the Debtor, Walter J. Wright (hereinafter referred to as “Wright”), declared to be non-d...
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MEMORANDUM OPINION This matter comes before the Court on Motion to Dismiss filed by General Motors Acceptance Corporation (“Movant”), a creditor in this Chapter 13 ease. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(A). For the following reasons, the Court will deny the motion. These findings of fact and conclusions of law are entered in compliance with Fed.R.Bankr...
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MEMORANDUM ORDER SUSTAINING DEBTOR’S OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS matter came before the Court for hearing on July 26, 1995 and August 9, 1995 upon the Objection to Claim of Internal Revenue Service (“IRS”) filed by the Slater Corporation (the “Debtor”). In addition, on July 3, 1995 the Court granted the Debtor’s motion to compel discovery and for sanctions agai...
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ORDER This adversary proceeding is before the court on Trustee’s motion for summary judgment. Trustee proposes in the motion for summary judgment a distribution, based upon the priority of the relevant liens of the claimants, of certain encumbered funds in Trustee’s possession as a result of liquidation of Debtor’s estate. The issue presents a conflict of hen priority law between Georgia state ...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Debtors’ “Objection to the Administrative Claim of the Internal Revenue Service and Motion to Disallow, Reduce or Adjust Claim.” The issue to be decided is the status of the Debtors’ 1992 federal income tax liability. The Court conducted a hearing on June 21, 1995 and took the matter under advisement. The Debtors and the I...
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MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS I. INTRODUCTION In this matter the defendant, Town of Clinton (hereinafter, the “Defendant” or *6 “Town”), seeks the dismissal of the instant adversary proceeding on the basis of the Plaintiffs admitted failure to comply with the terms of Connecticut General Statutes (hereinafter, “C.G.S”) §§ 7-465(a) and 7-101a(d) which, it is argued,...
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ORDER In this Chapter 7 case and adversary proceeding the Trustee’s objection to the Debtors’ homestead exemption and complaint for turnover are once again before this Court on remand from the Ninth Circuit Court of Appeals to consider the issue of whether the Debtors can amend their Schedules post-petition under the Federal Rules of Bankruptcy Procedure to claim a homestead exemption. ...
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OPINION AND ORDER DENYING ADVERSARY COMPLAINT FOR TURNOVER This matter is before the Court upon Beaver Office Products, Inc.’s (the “DIP”) adversary complaint for turnover of funds against Jamille Simon (“Simon”). The DIP seeks to collect funds which Simon allegedly owes to the DIP pursuant to two promissory notes executed in 1992 (the “Notes”). Upon consideration of the evidence adduced at trial,...
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OPINION AND ORDER EXCEPTING DEBTS FROM DISCHARGE This matter is before the Court upon Randolph L. Cobb’s (“Debtor”) complaint to determine dischargeability of his educational debts to the University of Toledo (“Toledo”), the Ohio Student Aid Commission (“OSAC”) and the United States Department of Education (“USA”) under 11 U.S.C. § 523(a)(8). Upon consideration of the evidence adduced at trial,...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR APPROVAL OF ASSUMPTION OF CONCESSION AGREEMENT F.W. Restaurant Associates, Inc., Debtor and Debtor-in-Possession (hereinafter variously referred to as the “Debtor” or “Debtor-in-Possession”) has made a motion pursuant to 11 U.S.C. § 365(a) to assume an executory contract or unexpired lease entitled “Fair-child Wheeler Golf Course Concession ...
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MEMORANDUM OPINION This matter comes before the Court on the objection to claim of exemption filed by Brenda Porter Helms, the Chapter 7 Trustee (the “Trustee”) for the estate of Dr. Yusuf Moneer (the “Debtor”), and the Debtor’s response in opposition thereto. At issue is whether the Debtor abandoned his claimed homestead in the property he formerly occupied as his home thereby losing...
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*440 REASONS FOR DECISION These matters came on for trial on May 11, 1995, on the: 1) Involuntary Petition filed by the law firm of Johnson & Placke, Don H. Johnson, and Allan L. Placke, and 2) the Trustee’s Motion for Turnover. This is a Core Proceeding pursuant to 28 U.S.C. § 157(b)(2). This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and by virtue of the reference by t...
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ORDER THIS MATTER comes before the court upon the Motion to Dismiss with prejudice for a period of 180 days filed by AmSouth Mortgage Company, Inc. (“AmSouth”) on June 22, 1995. At the hearing on the motion on July 31, 1995, the Court orally denied the motion with leave to supplement its oral ruling. 1 Based upon the evidence and testimony presented along with arguments of counsel, the Cour...
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ORDER ON MOTION TO DISMISS FILED BY ROUSSEAU MORTGAGE CORPORATION This matter comes before the Court upon a motion filed on June 28, 1995 by Rousseau Mortgage Corp. (“Rousseau”) seeking the dismissal of the above-captioned bankruptcy case with prejudice. A Motion for Expedited Hearing was filed on July 7, 1995. The *507 motion was granted and a hearing was held on July 17, 1995. The Chapter...
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ORDER THIS MATTER comes before the Court upon a motion filed on June 19, 1995 by United Carolina Bank (“UCB”) seeking relief from the automatic stay provisions of 11 U.S.C. §§ 362(a) and 1301(a). 1 The Debtor *192 filed a timely objection, appeared and testified at the hearing before the Court on July 31, 1995. Based upon the evidence, testimony and arguments of counsel, the Court makes the...
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MEMORANDUM ORDER CONFIRMING DEBTOR’S AMENDED PLAN OF REORGANIZATION This matter came before the Court on August 16, 1995 for hearing to consider confirmation of the Amended Plan of Reorganization filed by the Debtor, Miami Trueolor Offset Service Co. [hereafter “Plan”]. An objection to confirmation was filed by Simplicity Pattern Company, Inc. [“Simplicity”], and an ore tenus o...
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MEMORANDUM OPINION Factual Allegations On July 21, 1995, the Trustee filed an adversary proceeding against American National Bank (“ANB”) as successor to Lake Shore National Bank (“LSNB”) to determine ANB’s interest in the proceeds of the sale of the Debtor’s primary residence, to recover two allegedly preferential transfers in the amount of $225,000, to set aside a guaranty, an ...
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AMENDED ORDER THIS MATTER comes before the Court upon the Motion of Wachovia Bank of South Carolina, N.A. (“Wachovia”) to Find Stay Inapplicable, or Alternatively for Relief from the Automatic Stay, filed April 14, 1995 (“Motion for Relief from the Automatic Stay”); and the Motion of Darrell Creek Associates, L.P. (“Debtor”) for Sale Free and Clear of Liens Pursuant to 11 U.S.C. § 363 ...
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ORDER THIS MATTER is before the Court upon the Motion of Aetna Life Insurance Company for Ruling On Discrete Issue (Artificial Impairment — 1129(a)(10)) Affecting Confirma-bility of Debtor’s Initial Plan of Reorganization Proposed By Dunes Hotel Associates (the “Motion”), dated August 18, 1995 and the hearing (the “Hearing”) held thereon on September 7, 1995. After consideration of the pl...
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OPINION AND ORDER THIS MATTER comes before the Court on the “Motion for Forthwith Conditional Approval of Creditor’s Disclosure Statement and Ballot” filed by creditor Colorado Mountain Express (“CME”) on September 5,1995, and the Objections thereto filed by the Debt- or on September 7, 1995, and Robert Regul-ski, Harvey Gilmore, and Phillip Sullivan (collectively, the “Principals”) on Se...
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OPINION Before the Court is the motion of Haskell-Dawes, Inc. (“Debtor”), requesting that a committee of creditors not be appointed pursuant to 11 U.S.C. § 1102(a)(3) (the “Motion”). Objections to the Motion were filed by three unsecured creditors and a hearing on the Motion was held. Based upon Debt- or’s failure to establish “cause” for relief as required under § 1102(a)(3), the Mot...
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ORDER THIS MATTER came before the Court pursuant to: (i) the “Motion Of Aetna Life Insurance Company For Dismissal Of The Case, Or, In The Alternative, For Relief From The Automatic Stay” (the “Aetna Motion”), filed by Aetna Life Insurance Company (“Aetna”); and (ii) “S.C. Hyatt Corporation’s Motion To Dismiss Case Or In The Alternative Terminate Exclusivity” (the “S...
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OPINION Before the Court is the Objection of Sykes & Sons, Inc. (the “Debtor”) to the Proof of Claim of the Internal Revenue Service (the “IRS”) in the amount of $528,724.34, for, inter alia, unpaid income and social security taxes, 1 interest and penalties for the first quarter of 1992 through the fourth quarter of 1993. The Debtor does not dispute it...
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MEMORANDUM Before this court is the Motion by Plaintiff Michael S. Evans for Rule 9011 Sanctions (Fil. #31), and Application by Plaintiff Michael S. Evans for Compensation (Fil. # 32), Showing in Support of Section 7430 Fees and Rule 9011 Sanctions filed by Plaintiff, Michael S. Evans (Fil. #33). I assess costs and expenses against the Internal Revenue Service under section 7430 of the Intern...
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OPINION 1 Introduction The within Complaint is brought by David William Fuller (“Fuller” or “Debtor”) against the United States of America, Internal Revenue Service (“IRS”) to determine the dis-chargeability of the Debtor’s income tax obligations for the years 1984 through 1988. The issue which arises under 11 U.S.C. § 523(a)(1)(C) is whether the Debtor willfully attempted in any manner t...
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MEMORANDUM OPINION AND ORDER American Express Bank Ltd. has moved for pártial summary judgment on the amended complaint of DG Creditor Corp., as Trustee for DG Creditor Trust. This is the court’s Opinion on this core matter. 28 U.S.C. § 157(b)(2)(F). I. LEGAL STANDARD In considering American Express’ motion for partial summary judgment, the court .will view the recor...
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OPINION This matter came before the court on Gerald and Marie Hough’s objection to the debt- or’s proposed Chapter 13 plan. The Houghs hold a note secured solely by a second mortgage in the debtor’s principal residence. This debt matured by its own terms prior to the debtor’s bankruptcy; the debtor did not pay the final balloon payment. The debtor proposes to repay the note, without inter...
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*637 ORDER RE STANDING AND CAPACITY OF ARAB MONETARY FUND I. INTRODUCTION During the course of these consolidated bankruptcy eases, the debtors and the Arab Monetary Fund (“AMF”) have each raised issues regarding the sovereign immunity, standing and capacity of the AMF and this Court’s jurisdiction over the AMF. To bring these issues to resolution, the parties were directed ...
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MEMORANDUM OPINION AND ORDER Before the Court is the motion of the Administrator and Heirs of the Estate of the deceased Debtor to stay this Court’s Order of September 7, 1995, awarding counsel fees to the Estate of the late James E. Nunley. Notice of Appeal was filed on behalf of the Administrator of the Estate of Walter C. Mullins, Deceased, Talmadge Frambrough of the State of Alabama, as well a...
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ORDER DENYING APPROVAL OF DEBTOR’S FIFTH AMENDED DISCLOSURE STATEMENT, AND SUA SPONTE ORDER CONVERTING CASE TO CHAPTER 7 Before the Court are: (1) the Debtor’s Fifth Amended Disclosure Statement; and (2) her Response to this Court’s Order to Show Cause why the case should not be converted to Chapter 7. This, and all of the Debtor’s previously filed plans have depended entirely upon the antici...
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DECISION AND ORDER GRANTING IN PART AND DENYING IN PART THE GOVERNMENT’S MOTION TO VACATE, ALTER, OR AMEND ORDER AND JUDGMENT This adversary proceeding was brought by the Debtor, Lawrence Williams, for a determination that he has no federal tax liability. The Internal Revenue Service says he owes $22 Million Dollars. Before us for consideration today is the Motion of “Defendant United...
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MEMORANDUM DECISION ON OBJECTION TO CONFIRMATION BY NEW YORK CITY DEPARTMENT OF FINANCE The New York City Department of Finance (“City”) objects to that provision in Kerner Printing Co.’s (“Kerner”) Modified Liquidating Plan of Reorganization, as further modified (the “Plan”), purporting to exempt transfers of certain condominium units by New Kerner Co. (“New Kerner”) from taxation pursuant t...
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In this Chapter 7 proceeding, the trustee has objected to the priority status of claims filed on behalf of seven creditors who have asserted rights under the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C.A. § 499a-499s (West 1980 & Supp.1995). Although the trustee has framed the issue as a question of claim priority, the real dispute centers upon the definition of the bankruptcy est...
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MEMORANDUM OPINION Debtor seeks a determination that a debt he owes to the United States of America Internal Revenue Service (hereinafter “IRS”) for unpaid taxes and interest for certain tax years is not subject to the exception to dis-chargeability set forth at 11 U.S.C. § 523(a)(1)(C). Debtor denies that he was aware at that time of his duty to file income tax returns for the years in quest...
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ORDER Currently before the Court in these proceedings is the Motion for Summary Judgment of American Express Travel Related .Services Co., Inc. (hereinafter “AmEx”). AmEx’s motion comes as part of a Complaint to Determine Dischargeability of Debt, brought by it against Alexis Rusu (hereinafter “the Debtor”). Consequently, these matters fall within the subject matter jurisdiction of th...
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OPINION OVERVIEW Appellant, State Accident Insurance Fund Corporation (SAIF), is liable to the debtor for compensation for a permanent partial disability she suffers due to a work-related injury. SAIF seeks to reduce the amount of the award by a sum equal to an excess of temporary disability payments which SAIF overpaid to the debtor on her claim. 1 On cross-motions fo...
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OPINION The sole question raised in this appeal is whether a trustee who has been awarded the maximum compensation permissible under 11 U.S.C. § 326(a) 2 may receive additional compensation for services performed by a paraprofessional employed by the trustee. We hold that such additional compensation is barred by section 326(a) and REVERSE the contrary ruling of the bankrup...
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MEMORANDUM OF DECISION The matter before the Court arises from an adversary proceeding, filed by Stephan M. Rodolakis, Chapter 11 Trustee (the “Trustee” or “Plaintiff’) against Dr. Andrew Cher-toff (“Chertoff’ or the “Defendant”). The Complaint seeks equitable subordination, pursuant to 11 U.S.C. § 510(c), of a mortgage given to Chertoff by the debtor 1236 Development Corporation (the...
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188 B.R. 413 (1995) In re Glicerio D. RAMIREZ, Debtor. Glicerio D. RAMIREZ, Appellant, v. John WHELAN and Patricia Douce, Appellees. BAP No. CC-94-1409-JKV. Bankruptcy No. SB-93-22083-MG. United States Bankruptcy Appellate Panel of the Ninth Circuit. Submitted February 22, 1995. Decided June 2, 1995. Glicerio D. Ramirez, Adelanto, CA, in pro. per. No appearance made for appellees. Before JONES, K...
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OPINION Introduction. Before the Court is a Motion entitled “Motion of Resource Bank to Modify the Automatic Stay of 11 U.S.C. § 362 and for Relief Under 11 U.S.C. § 105.” In the former respect, the Movant, “Resource” seeks leave to recapture the incidents of ownership to two mortgage loans it transferred to the Debtor, Shareholders Funding, Inc. d/b/a Affinity National Mortg...
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MEMORANDUM OF DECISION I. ISSUE The central issue in this proceeding, to which the parties devoted nine trial days, is *100 whether the defendant, Astroline Company (and its general partners), a limited partner of Astroline Communications Company Limited Partnership (the “Debtor”), are liable as a general partner for the Debtor’s prepetition obligations for ...
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DECISION ON ORDER ABSTAINING AND DISMISSING ADVERSARY This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) — determinations as to the dischargeability of debts pursuant to 11 U.S.C. § 523(a)(5). The iss...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease is before the Court upon an Objection to Claim 15 of the Internal Revenue Service, filed by SunBank of Volusia County. A hearing was held on the Objection on June 8, 1995. Based upon the evidence presented at the hearing, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT The Debtor, Homelands of DeLeon...
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ORDER DENYING JOHN W.'STADLER’S MOTION FOR DETERMINATION OF TAX LIABILITY OF THE DEBTORS AND HIMSELF THIS CAUSE came before the Court on March 9, 1995, upon John W. Stacker's Motion For Determination Of Tax Liability Of The Debtors And Himself and the Court, having heard the arguments of counsel, having reviewed the memoranda submitted by the parties and being otherwise fully advised in the p...
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MEMORANDUM OPINION The debtors, Barry and Nancy Shapiro, have filed an adversary proceeding seeking a determination of their prepetition federal tax liability under section 505 of the Bankruptcy Code, along with a determination of the dis-chargeability of this debt under section 523. The defendant United States filed an answer, and later a motion for summary judgment, which was coupled with a req...
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MEMORANDUM OPINION AND ORDER SUBORDINATING TAX PENALTY CLAIMS Cassis Bistro, Inc., the debtor in this Chapter 11 case (the “Debtor”), seeks to subordinate nonpecuniary tax penalty claims for purposes of distribution under its confirmed liquidating plan. For the reasons that follow, the Court finds that the nonpecu-niary tax penalty claims in this case can and should be subordinated to...
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MEMORANDUM OPINION Plaintiff Cheri Huckstep, formerly Cheri Stegall, challenges the dischargeability of a debt assumed by her former husband, debt- or/defendant Kirk Stegall (“debtor”), as part of the property settlement in the parties’ dissolution proceeding. 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...
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*387 DECISION ON ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DISALLOWING CITRA’S PROOF OF CLAIM DATED APRIL 17, 1995. 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. §...
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MEMORANDUM OPINION This matter comes before the Court on the Objection of S.N.A. Nut Company (“Debtor”) to the Priority Tax Status of Claim # 128, filed by the California Walnut Commission (“Commission”), under § 507(a)(8) of the Bankruptcy Code (“Code”). The Commission was established by the California Legislature in 1987, 1 to maintain and expand the walnut industry in Califo...
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MEMORANDUM DECISION I. BACKGROUND Before the Court is an Application for Default Judgment for Non-Dischargeability of a Debt by Plaintiff General Electric Capital Corporation (“GECC”). GECC alleges that it is the successor in interest to the claims of two department store chains: Lev-itz Furniture (“Levitz”) and R.H. Macy & Co. (“Macy’s”). Defendants are Luat D. B...
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There is abundant authority to the effect that prepetition claims against a corporate Chapter 11 debtor are not discharged under 11 U.S.C. § 1141(d)(1) if the debtor knew of the claim and did not schedule the creditor and if the creditor, therefore, never received the notices required by statute. It further appears that this rule appertains even if the unscheduled creditor was aware of the bank...
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MEMORANDUM OPINION Pending before the Court are Deere Credit, Inc.’s (Deere), (1) Motion for Relief From Stay filed pursuant to 11 U.S.C. §§ 362(d)(1) and (d)(2); and (2) Objection to Confirmation filed pursuant to 11 U.S.C. § 1325(a)(5)(B)(ii) in the above-styled case. The Motion and Objection were filed on June 27, 1995, and the Court held a hearing on the Motion and Objection on Ju...
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MEMORANDUM DECISION Trial in this matter was held before the undersigned on October 3, 4, 5, and 6, 1994, and November 9, 1994. William J. Bush, Esq. of Hanson, Bridgett, Marcus, Vlahos & Rudy appeared for Plaintiff Ed Silva (“Silva”). Paul R. Bessette, Esq. of Brobeck, Phleger & Harrison appeared for Defendant Wells Fargo Bank (“Bank”). Defendant GVF Cannery, Inc. (“GVF”), the Debtor in ...
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MEMORANDUM TO AMENDED ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT The Court has entered an amended order to dispose of cross-motions for summary judgment made by the Plaintiff, by Defendants The Norman Vinitsky Residuary Trust (“the Vinitsky Trust”), Shirley Vinitsky, and Sidney Kaplan, and by Defendants Svihel Enterprises, Inc. (“SEI”) and James Svihel. As ultimately presented for decis...
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ORDER SUSTAINING OBJECTION TO SETTLEMENT THIS CAUSE is before the Court upon the debtor’s letter objection, filed on May 22, 1995. On March 8, 1995, the trustee filed a Compromise and Settlement Agreement, Combined with Notice Thereof, under which the trustee proposed to settle a lawsuit against Swift Eckrich, Inc. pending in the United States District Court for the Western District of Arkansas,...
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ORDER DENYING MOTION TO REOPEN THIS CAUSE is before the Court upon the debtor’s second Motion to Reopen Chapter Seven Case, filed on October 3, 1995. The debtor originally filed her Chapter 7 petition in bankruptcy on January 22, 1992, the schedules for which failed to list Gwatney Chevrolet as a creditor. The debtor received her discharge and the case was closed in May 1992. It was not until Ma...
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MEMORANDUM ORDER DENYING CREDITOR’S OBJECTION TO DEBTOR’S HOMESTEAD EXEMPTION This matter came before the Court for hearing on October 3,1995 upon the Creditor Interocean’s Objection to Debtor’s Claimed Homestead Exemption which was filed on August 25, 1995. The Court, having reviewed the Motion and the response thereto, having heard the arguments of counsel, having reviewe...
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ORDER DENYING MOTION TO DISMISS AND SUSPENDING ADVERSARY PROCEEDING THIS CAUSE is before the Court upon the defendant’s Motion to Dismiss Adversary Proceeding, filed on June 30, 1995. The debtor originally filed his bankruptcy case under Chapter 7 of the Bankruptcy Code, on August 31, 1994. The schedules listed only two debts: the debtor’s automobile loan and a judgment based upon debtor’s assau...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the trial of the merits of the Complaint to *403recover a fraudulent transfer, filed on June 12, 1995. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b) as exemplified by 28 U.S.C. §...
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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 Complaint to Determine Dischargeability, filed on June 12, 1995. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b) as exemplified by 28 U.S.C. § 157(b)...
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MEMORANDUM OPINION The Court has before it cross motions for a final declaratory order and a stipulated factual record. The dispute the parties ask this Court to resolve is whether four health education assistance loans taken out by the Plaintiff to finance his dental education remain subject to the dischargeability provisions found at 42 U.S.C. § 292f(g). The Plaintiff, Dr. Roy, cons...
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MEMORANDUM DECISION OVERRULING OPPOSITION OF THE UNITED STATES TO DEBTOR’S MOTION TO CONVERT CASE FROM CHAPTER 7 TO CHAPTER 11 CAME ON for consideration the foregoing matter. Shortly after the Chapter 7 Trustee sought to examine the debtor pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure, the debtor filed a motion to convert his case to chapter 11. At a hearing to qu...
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MEMORANDUM ORDER SUSTAINING OBJECTION TO DEBTOR’S SALE OF REAL PROPERTY FREE AND CLEAR OF LIENS AND HOMESTEAD EXEMPTION This matter came before the Court for hearing on Tuesday, October 10, 1995 upon the Objection to Debtor’s Motion to Avoid Liens on Exempt Homestead Property (“Objection”) filed by Creditors, Stephen L. Warner and Kathryn A. Warner on or about July 29, 1995. The Court, having...
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MEMORANDUM OPINION The Court has before it the Debtor/Defendant’s amended motion to dismiss adversary complaint and amended motion for summary judgment. The adversary, which is the subject of this motion, seeks to have this Court determine that a certain judgment entered in the United States District Court for the District of New Hampshire with the consent of the Plaintiffs and Defendant here...
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MEMORANDUM OPINION The Court has before it the motion to dismiss Debtors’ amended complaint filed by the Defendant, MMG Dollar Trust (“MMG”), for failure to state a claim upon which relief can be granted. Specifically, as stated in MMG’s memorandum of law, MMG argues that the complaint should be dismissed “because a mortgagee’s claim cannot be invalidated by its refusal to foreclose on its colla...
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DECISION & ORDER BACKGROUND On May 20, 1993, the debtor, Pittsford Polo Club, Inc. (“Pittsford Polo”), filed a *341 petition initiating a Chapter 11 case. On its schedules, Pittsford Polo listed its ownership of four parcels of real property as being covered by a Note and first mortgage (the “Adams Group Mortgage”), dated March 11, 1992 and recorded in the Office of the ...
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ORDER ON APPLICATION OF STANFORD SPRINGEL FOR ALLOWANCE OF FEES AND EXPENSES FOR THE PERIOD MARCH 16, 1995 THROUGH APRIL 5, 1995 CAME ON for consideration the foregoing matter. Stanford Springel was retained by the estate as the Debtor’s Chief Interim Vice President and Chief Operating Officer. Pri- or to the filing, the debtor had retained Mr. Springel as a “crisis manager” on Januar...
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ORDER This adversary proceeding is before the court on Plaintiffs Motion For Imposition of Sanctions Against Defendant For Contempt of Court (the “Contempt Motion”) for failure to obey the Preliminary Injunction entered September 1, 1994 and the Permanent Injunction entered October 18, 1994. The U.S. Trustee’s Contempt Motion and the Notice of Hearing were served upon Defendant and upon Defendant’...
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MEMORANDUM In this Chapter 11 case, the court must determine the validity of Nebraska statutory provisions dissolving a limited liability company upon the filing of a bankruptcy petition *609 by one of its members. No cases are reported dealing with such a provision in a limited liability act in any jurisdiction, it is a matter of first impression nationally. I conclude t...
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OPINION A. INTRODUCTION The instant matter requires us to decide whether this bankruptcy court may entertain, de novo, the issue of a creditor’s right to a post-discharge setoff under 11 U.S.C. § 553, after that issue has already been decided adversely to the Debtor by a state court. We conclude that the state court properly exercised its jurisdiction, concurrent w...
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OPINION Before the Court is the objection filed by Charles E. Covey, Trustee, to the claim of exemptions made by Robert Lowder, the Debtor. In March of 1995, the Debtor borrowed approximately $39,000.00 from a financial institution known as “The Money Store” and paid off the first mortgage on his residence in the approximate amount of $17,525.00. From the net proceeds received by the...
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ORDER In this adversary proceeding, the Chapter 7 bankruptcy Trustee seeks turnover of certain real property held by the Debtor/Defendant, Tammy Lee James d/b/a Just Flowers (“Debtor”) on grounds that the asset is property of the bankruptcy estate under 11 U.S.C. § 541. Debtor resists the Trustee’s allegation, contending that, under a marriage dissolution decree entered by a Montana court...
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MEMORANDUM I. INTRODUCTION The matter before the Court in this adversary proceeding is the defendant’s motion to dismiss the plaintiffs Complaint pursuant to Fed.R.Bankr.P. 7012 and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The plaintiff filed an opposition to the motion, and the Court held a hearing on September 7, 1995. At the conclusion o...
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ORDER Robert D. and Gwendolyn K. Schneekloth (“Debtors”) filed this voluntary Chapter 12 bankruptcy petition February 16, 1995. Schedules and Statement of Affairs were filed April 17,1995. On June 26,1995, Debtors filed a First Amended Chapter 12 Plan of Reorganization (“the Plan”), to which the Chapter 12 Trustee (“Trustee”) objected on July 3, 1995. The Plan provides for, inter alia, a “sur...
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OPINION Introduction. Charles E. Sigety Va Valley Green Corporate Center (the “Lessor”) has filed a Motion in this “liquidating” Chapter 11 case seeking an Order (1) allowing administrative expense claim; (2) providing that Lessor may recover its claim pursuant to 11 U.S.C. § 506(c); and (3) directing immediate payment of Lessor’s administrative expense pursuant to 11 U.S.C. § 365(d)(3) (the ...
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*732 ORDER OVERRULING TRUSTEE’S OBJECTION TO EXEMPTION Before the Court is the Chapter 7 Trustee’s Objection to the Debtor Henry Marsella’s claimed exemption in an Individual Retirement Account. The Trustee argues that an IRA is not exempt under 11 U.S.C. § 522(d)(10)(E) if the Debtor has no present right to payment under the plan, and he cites In re Chick, 135 B.R. 201 (Bankr.D.Conn.1991...
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ORDER The above-entitled matter came on for hearing before the undersigned on November 8, 1995, on a motion of the defendant, American Express Travel Related Services Company, Inc. (“American Express”), for dismissal of the Complaint for failure to state a claim and for improper venue pursuant to Rule 7012(b)(6) of the Federal Rules of Bankruptcy Procedure and 28 U.S.C. § 1409(b), res...
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DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court 1 upon a motion for summary judgment (“Motion”) by Allan B. Mendelsohn, the chapter 7 trustee (“Trustee” or “Plaintiff’) of the estate of John J. Moran and Dora Moran (“Debtors”) as to his complaint (“Complaint”) against *494 Louis Frey Co., Inc. (“Frey” or “Defendant”) to avoid ce...
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*567 MEMORANDUM OPINION This matter comes before the Court on the Motion of Gerald Dye (“Debtor”) for Turnover of Funds by the Internal Revenue Service (“I.R.S.”). On March 20, 1995, Debtor filed for relief under Chapter 13 of the Bankruptcy Code (“Code”) in his individual capacity. The I.R.S. is listed as an unsecured creditor in the amount of $2,228.47 on the Schedule E filed by the Debtor....
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ORDER ON CHAPTER 13 TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF HOMESTEAD EXEMPTION On July 27, 1995, debtors filed a joint voluntary petition for relief under Chapter 13 of the Bankruptcy Code. On August 31, 1995, debtors filed the required Schedule C— Property Claimed As Exempt, claiming as their exempt homestead 80 acres of rural property located in Lincoln County, Oklahoma, in which, according ...
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RULING ON MOTION FOR RELIEF FROM STAY I. Countryside Manor, Inc., the operator of an intermediate/skilled nursing care facility (the “Debtor”), filed a petition under Chapter 11 on November 18, 1994. Three months previously, the Debtor had filed suit in the Connecticut Superior Court against Richard F. Prindle, The Prindle Family Limited Partnership, and Elaine E. Prindle (the “D...
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OPINION I The bankruptcy court for the District of Alaska refused to appoint a New York resident as Chapter 7 trustee, on the basis that he did not have an office in Alaska. Several creditors appeal this ruling. We AFFIRM. II FACTS On December 19, 1993, Martech USA, Inc. filed a Chapter 11 bankruptcy petition. The case was converted to Chapter 7 on December 21, 1994. Kenneth W. Batt...
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OPINION A creditor has appealed the bankruptcy court’s order denying its motion to extend time to file a notice of appeal. It argues that a disposition designated as an “order” granting summary judgment was not a final, ap-pealable order. It also argues that its failure to file a timely notice of appeal was due to excusable neglect, and that its excusable neglect can be based on the oppos...
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MEMORANDUM OF DECISION Before the court is a Complaint to Determine Dischargeability of Debt filed by Hecht’s, a Division of the May Department Stores Company (“Hecht’s”). Plaintiff seeks a ruling that $732.16 in unpaid charges be declared nondischargeable. This court has jurisdiction pursuant to 28 U.S.C. § 1334 (District Courts have original and exclusive jurisdiction of all cases under...
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OPINION I. The Chapter 7 trustee, Kenneth W. Batt-ley, filed a complaint against the United States of America, Internal Revenue Service (“United States” or “IRS”) to avoid a federal tax lien. The bankruptcy court entered a judgment in favor of the trustee and it is from this judgment that the United States appeals. For the reasons set forth below, we REVERSE the bankruptcy court’s or...
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OPINION Before JELLEN 1 , PERRIS 2 , and MEYERS, Bankruptcy Judges. On motion of the debtor’s former spouse, an unsecured claimant, the bankruptcy court dismissed the debtor’s voluntary Chapter 7 petition pursuant to Bankruptcy Code § 305(a)(1) 3 . The debtor appeals. We reverse and remand. I. FACTS On April 15, 1994, the ...
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MEMORANDUM OPINION This Adversary proceeding relates to the joint bankruptcy ease filed by the debtors, Bruce Barr and Paula Barr (collectively “Debtors,” “Defendants” or “the Barrs”), under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Plaintiffs filed this Adversary complaint seeking to revoke Debtors’ discharge under 11 U.S.C. § 727(d)(1). Defendants moved ...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the debtor-in-possession, Anderson-Smith & Associates, Inc. (hereinafter “Debtor”), seeking a determination by this Court that certain transfers of property made by the Debtor to Xyplex, Inc. (hereinafter “Xyplex”), constituted preferential transfers within the meaning of section 547(b) of the Bankruptcy...
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MEMORANDUM OPINION AND ORDER This case is before the Court on Household Finance Corp.’s (Household) complaint to determine the dischargeability of two debts incurred by the debtor, Charles Marvin Kah-ler, pursuant to § 523(a)(2)(A). After reviewing the evidence and the arguments of counsel, we make the following determinations. FINDINGS OF FACT The facts in this matter are uncontrovert-ed. ...
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MEMORANDUM OPINION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The above-captioned Adversary proceedings each relate to the involuntary bankruptcy case filed on May 12,1993, by creditors of Michael J. Randy (“Debtor”) under Chapter 7 of the United States Bankruptcy Code, 11 U.S.C. ¶ 101 et seq. (“Code”). An order for relief was entered therein on June 17, 1993, and Philip V....
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The matter before the court is the final trial of Cecelia Hawkins’ complaint to determine the dischargeability of her student loan obligation to Illinois Student Assistance Commission (ISAC). Trial was held May 18, 1995 in Fort Dodge, Iowa. Charles A. Walker appeared for Hawkins. David J. Hersh-man appeared for ISAC. The court now issues its findings of fact and conclusions of law as required b...
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OPINION COMES NOW before the Court for consideration the Motion for Relief from Automatic Stay of 11 U.S.C. § 362 With Respect to Fred Funk Promissory Notes (the “Stay Motion”) filed by Stephens Diversified Leasing, Inc. (“SDL”). This opinion constitutes the Court’s findings of fact and conclusions of law to the extent required by Fed.R.Bankr. Proc. 7052 and disposes of all...
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DECISION AND ORDER On March 23, 1995, the Pogoda Group, an unsecured creditor of Leroy Joseph Potts and Regina Marie Potts (the “Potts”), debtors herein, filed its MOTION TO COMPEL COMPLIANCE WITH CONFIRMED CHAPTER 11 PLAN OF REORGANIZATION (“motion to compel compliance”). On August 31, 1995, the court held a hearing on the Pogoda Group’s motion to compel compliance, after which, the ...
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SUPPLEMENTAL OPINION On September 5, 1995, this Court gave a bench opinion denying a motion to set aside default and default judgment filed by Thomas A. Couts, the debtor. This written opinion supplements that bench opinion. I. Prior to the bankruptcy case, in September of 1993, plaintiffs Richard and Janice Meganck sued the debtor in state court. The complaint alleged the d...
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ORDER ON MOTION TO DISMISS THIS ADVERSARY PROCEEDING came on for hearing on the Motion to Dismiss filed by Ralph Short (the “Debtor”). Arthur J. Malone, the Plaintiff, filed a two count Complaint. Count I seeks to avoid a transfer of an interest of the Debtor in property pursuant to 11 U.S.C. § 544(b) and § 548. Count II seeks denial of the discharge, pursuant to 11 U.S.C. § 727(a)(2), because ...
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MEMORANDUM DECISION DENYING FIBREBOARD’S MOTION TO FILE A LATE PROOF OF CLAIM Fibreboard Corporation (“Fibreboard”), a co-defendant with the debtor, Keene Corporation (“Keene”), in many asbestos-related personal injury and property damage lawsuits, seeks leave to file a late claim, sounding in contribution or indemnity, pursuant to Fed.R.Bankr.P. 3003(c)(3) and 9006(b)(1). It argues that ...
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OPINION REGARDING MOTION FOR INJUNCTION INTRODUCTION On June 19, 1991, Dannie McMullen entered into an agreement with John and Lavonne Burgess, pursuant to which McMullen was to make certain improvements to the Burgesses’ home. One of the suppliers utilized by McMullen in connection with the performance of this agreement was Lapeer County Cooperative, Inc. (the “co-op”). The ...
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DECISION DENYING CONFIRMATION OF DEBTOR’S AMENDED PLAN OF REORGANIZATION Sitting by Special Designation. At issue is whether the Debtor’s Amended Plan of Reorganization (the “Plan”) can be confirmed over the objection of the largest secured creditor, Bank of New York (“BNY”). BNY objects on various grounds including: that the claim of a second secured creditor, Union State Bank (“Union Stat...
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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 of a debt admittedly due and owing by Matthew C. Tinney (the “Debtor”) to Barnett Bank of Pinellas County (“Barnett” ). Barnett’s claim of nondischargeability is brought in a two count complaint based on § 523(a)(2)(A) of the Bankruptcy Co...
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ORDER ON REMAND This matter came before the court on a Complaint for Damages filed by S & P, Inc., on March 29, 1988, against one of its former attorneys and his law firm. The Complaint alleged legal malpractice by defendants, Daniel H. Pfeifer and Sweeney, Pfeifer & Blackburn. After trial held in May 1992, the court entered its judgment for plaintiff, S & P, Inc., on October 21, 1992...
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ORDER ON MOTION OF T/F SYSTEMS, INC. FOR RELIEF FROM AUTOMATIC STAY (Supersedeas Bond) THIS CASE came on for consideration on the Motion of T/F Systems, Inc. for Relief from Automatic Stay pursuant to § 362(d)(1) of the Bankruptcy Code. T/F Systems, Inc. (“T/F” or “Movant”) requests that the auto'matic stay imposed by 11 U.S.C. § 362(a) be lifted to clarify that the Movant is permitted to exe...
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OPINION COMES NOW before the Court for consideration the Complaint for Declaratory Judgment filed by Lee and Nancy Hudgins (“Debtors”) and the Motion to Modify Stay filed by the Security Bank of Whitesboro (“Bank”). These matters were consolidated for hearing pursuant to agreement with counsel since they both deal with the same fact situation. This opinion constitutes the Court’s find...
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MEMORANDUM OPINION This is the court’s decision on a complaint under section 523(a)(4) of title 11, United States Code (hereinafter the “Bankruptcy Code” or “Code”). The defendant debtors were lottery sales agents who failed to turn over proceeds of lottery tickets which they sold, and failed to account for other tickets which they received from the New Jersey Lottery Commission. The ...
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OPINION The within matter comes before the court pursuant to 11 United States Code Section 303(i) wherein alleged debtor Landmark Distributors, Inc. (“Landmark”) seeks to have the court grant judgment awarding Landmark costs and reasonable attorneys fees; in addition, Landmark seeks damages proximately caused by the filing of an involuntary bankruptcy proceeding, as well as punitive damag...
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SUMMARY ORDER Presently before the Court is the Chapter 13 Trustee’s motion to dismiss. The debtor, Ronald Arthur Yensen’s previous Chapter 13 proceeding 1 was dismissed in February of 1995 for failure to attend the § 341 meeting of creditors. The debtor testified at the hearing held July 10, 1995 that he deliberately chose not to attend because he was afraid he would be arrested at the mee...
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ORDER OF TRANSFER In this adversary proceeding the Plaintiff, Gregory N. Dean, seeks a dischargeability determination regarding a certain damage award issued in his favor in a prepetition state court judgment. Following preliminary examination of the evidence submitted in this matter and an examination of the record, generally, the above-styled adversary proceeding is hereby transferred to th...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court on Plaintiff’s Complaint to Determine Dis-chargeability of Debt. A trial was held in which the parties were afforded the opportunity to present evidence and make arguments they wished the Court to consider in reaching its Decision. The Court reviewed the written arguments of counsel, exhibits, relevant statutory and cas...
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MEMORANDUM OF DECISION Debtors Gulf USA Corporation and Pintlar Corporation (collectively “DIP”) move for an order of the Court allowing and approving the transfer of certain real property to the *681 Environmental Creditors 1 as part of the settlement arrangement between the DIP and the Environmental Creditors. The transfers are also part of the plan of reorganization. The property is refe...
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MEMORANDUM RE DEBTOR’S APPLICATION TO EMPLOY ATTORNEYS PURSUANT TO 11 U.S.C. § 327(a) AND OBJECTION THERETO FILED BY THE UNITED STATES TRUSTEE This Memorandum presents the narrow question whether the disqualification of one partner in a law firm for lack of “disinterestedness” under 11 U.S.C. § 327(a) 1 should be imputed to the entire law firm where a chapter 11 debtor-in-posse...
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MEMORANDUM OF DECISION The Chapter 13 debtors seek confirmation of their plan over the trustee’s objection. FACTUAL BACKGROUND Bud and Marcy Smith (the “debtors”) filed their petition for relief under Chapter 13 of Title 11 of the United States Code on March 7, 1995. The debtors’ first plan provided for 54 monthly payments of $2,100.00 each. At the May 15,1995 confirmation hearing on the ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtor’s Objection to the Amended Claim filed by the Internal Revenue Service. The United States filed a Response, and the matter was set for Hearing. At the Hearing, the Court instructed the parties to file post-Hearing Briefs. The Court also instructed the United States to report to the Debtor, Trustee, and the Court as ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Motion for Summary Judgment and Memorandum in Support. Defendant failed to submit a Reply. This Court has reviewed the arguments of counsel, exhibits, as well as the entire record of the case. Based upon that review, and for the following reasons, the Court finds that the Plaintiffs Motion for Summary Judgment s...
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MEMORANDUM OF OPINION AND ORDER Society National Bank (the Bank), a secured creditor, seeks relief from the injunc-tive provisions of § 362(a) of the Bankruptcy Code, in addition to an order which would prohibit the Shaker Housing Credit Limited Partnership (the Debtor) from using certain cash collateral. This is a single asset case wherein the Debtor filed its voluntary petition for relief unde...
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MEMORANDUM DECISION I. INTRODUCTION Plaintiffs Brennan J. Newsom, Franza Gif-fen Newsom, and Brennan J. Newsom as Attorney In Fact for Rene Uraconiso, an Individual (deceased) (collectively “Plaintiffs”) filed a complaint (the “Nondischarge-ability Complaint”) seeking to have the sum of $214,295.91 in compensatory and punitive damages awarded under a state court default judgment agai...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEBTOR’S SANCTION MOTION This matter coming to be heard on the Motion of the Debtor, A & C Electric, Inc. (“A & C” or “Debtor”), Emergency Application for Finding of Civil Contempt under Fed.R.Bankr.P. 9020 and for Sanctions under 11 U.S.C. § 362(h), all parties having been present, the Court having heard testimony, taken evidence, and heard ...
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OPINION A. INTRODUCTION The instant dispute boils down to requiring this court to again, shortly after our Opinion in In re Sacred Heart Hospital of Norristown, 186 B.R. 891 (Bankr.E.D.Pa.1995), apply the United States Supreme Court’s decision in Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1...
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OPINION THIS MATTER is before the Court upon the Motion for Entry of an Order Allowing and Directing Payment of an Administrative Expense Claim filed by PLC Reality Company. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Standing Order of Reference entered by the United States District Court of New Jersey on July 23, 1994. Moreover, this is a core pro...
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MEMORANDUM DECISION BACKGROUND This is an old case, but it has not been idle. The plaintiffs motion for summary judgment based on 11 U.S.C. § 523(a)(6) was denied early in the case, and their motion for summary judgment based on 11 U.S.C. § 523(a)(4) was held in abeyance while the underlying action to determine liability bounced twice from the district court to the Seventh Circui...
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OPINION A INTRODUCTION Objections filed by MIDLANTIC BANK, N.A. (“the Bank”) to the final fee application (“the Application”) of Fellheimer Eichen Braverman & Kaskey (“Counsel”), appointed as general counsel for QUAKER DISTRIBUTORS, INC. (“the Debtor”), raise two issues: (1) does this court have jurisdiction over the issue of whether Counsel can be paid from the proceeds ...
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AMENDED MEMORANDUM OPINION OVERRULING OBJECTIONS TO CLAIM OF EXEMPTIONS This matter came on for hearing before the U.S. Bankruptcy Court for the District of Maryland at Baltimore on April 12-13, 1995, upon objections to the debtors’ exemption of monies payable on account of a settlement of personal injury claims. The objections were filed by a creditor, Governor Plaza Associates (“Gov...
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MEMORANDUM OPINION AND ORDER . GRANTING MOTION TO COMPEL DEBTOR TO REAFFIRM, REDEEM OR SURRENDER COLLATERAL Before the Court is the Motion to Compel Debtor to Reaffirm, Redeem or Surrender Collateral (“Motion to Compel”) filed by Delta Employees Credit Union (“Delta”). Delta seeks an order compelling the Debtor to exercise one of the alternatives specified in § 521 of the Bankruptcy C...
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MEMORANDUM OPINION The matter before the court is Debtors’ Complaint Seeking to Determine the Extent and Validity of Secured Status. 1 Debtors seek this relief in conjunction with a chapter 13 plan. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 157 and § 1334. This matter is a core proceeding. 28 U.S.C. § 157(b)(2)(E). Fleet Mortgage Corporation (“Fle...
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MEMORANDUM OPINION The matter before the court is Debtor’s Complaint Seeking to Determine the extent and Validity of Secured Status of Creditor Under 11 U.S.C. §§ 502, 506. 1 Debtor contends that, pursuant to 11 U.S.C. § 1322(b)(2), the secured claim held by Citi-corp Mortgage, Inc. (“Citicorp”), may be modified because it is secured by a mortgage *4 that includes ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on motions by Up State Federal Credit Union (“Up State”) and Nicholas and Larae A. Car-letta (“Debtors”) in the adversary proceeding commenced by Up State against Debtors. On or about December 13, 1994, Up State filed a motion for summary judgment under *260 Federal Rules of...
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OPINION This adversary proceeding came before the Court on October 2, 1995 for Trial on a Complaint seeking discharge of student loans pursuant to 11 U.S.C. § 523(a)(8). During the trial, the Court considered two Motions for (Partial) Summary Judgment, filed by defendant Massachusetts Higher Education Assistance Corporation d/b/a American Student Assistance (“ASA”) (Ct.Doc. Nos. 18 and 19), a...
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ORDER DENYING NATIONSCREDIT FINANCIAL SERVICES CORPORATION’S RENEWED MOTION FOR RELIEF FROM AUTOMATIC STAY AND ALTERNATIVE MOTION TO DISMISS THIS CAUSE came before the Court on October 25, 1995, upon NationsCredit Financial Services Corporation’s (“NationsCredit”) Renewed Motion for Relief from Automatic Stay and Alternative Motion to Dismiss (“Motion”). The Court having considered the argume...
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MEMORANDUM AND ORDER This adversary proceeding 1 was commenced by the trustee, Wm. Keenan Stephenson (the “Trustee”), and the debtor, David C. Berry (“Berry”), (1) to determine the validity or extent of a hen or interest in property, and (2) to avoid, pursuant to 11 U.S.C. § 544 2 & 3 , the debtor’s transfer of an interest in property of the debtor to the ...
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DECISION AND ORDER DENYING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION FOR INDIVIDUAL RETIREMENT ACCOUNT This matter came on for trial upon the “Trustee’s Objection to Debtor’s Claimed Exemption” (Doc. # 9). 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)(B)....
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed on May 11, 1995, by Robert G. Tripp, Jr. (“Debtor”) seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), incorporated in Rule 7056 of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bankr.P.”) in the adversary proceeding comme...
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RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO DISMISS AMENDED COMPLAINT AS TO THE CO-PLAINTIFF, COLMARK I LIMITED PARTNERSHIP I. In an amended complaint filed on December 8,1993, the co-plaintiff, Colmark I Limited Partnership (“Colmark”), seeks to recover $250,000.00 from the defendant law firm, Graubard, Mollen, Horowitz, Pomeranz & Shapiro, gener...
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MEMORANDUM OPINION THIS MATTER comes before the court upon the defendants’ motion for judgment on the pleadings made orally at a pretrial conference held herein on May 23, 1995. As a result of defendants’ motion, this court established a briefing schedule. The last brief was filed on July 12, 1995 and this matter is now ripe for decision. BACKGROUND This is an adversary proceedi...
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MEMORANDUM DECISION AND ORDER GRANTING IN PART DEBTOR’S MOTION PURSUANT TO 11 U.S.C. § 362(h) FOR DAMAGES FOR WILLFUL VIOLATION OF AUTOMATIC STAY AND FOR DETERMINATION OF CONTEMPT OF COURT FOR VIOLATION OF THE AUTOMATIC STAY Debtor’s motion pursuant to 11 U.S.C. § 362(h) for damages for willful violation of *17 automatic stay and for determination of contempt of court for...
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ORDER DENYING MICHAEL KOVEN’S VERIFIED EMERGENCY MOTION FOR INJUNCTIVE RELIEF AS TO KATHLEEN F. RUNDLE, STATE ATTORNEY THIS MATTER came on before the Court on October 12, 1995 upon Michael Koven’s Verified Emergency Motion for Injunctive Relief against KATHLEEN F. RUNDLE, State Attorney for the State of Florida. Movant, MICHAEL KOVEN, was at all material times the comptroller of the Debtor, its ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On May 15,1995, Dark Horse Tavern, Inc. (“Debtor”) filed a motion pursuant to Federal Rules of Bankruptcy Procedure (“Fed. R.Bankr.P.”) 3017 seeking, inter alia, to set a date for the hearing on confirmation of Debtor’s Modified Second Plan of Reorganization (“Modified Second Plan”). Thereafter, on May 25,1995,...
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MEMORANDUM OPINION This matter is before the Court for Confirmation of Debtor’s proposed Second Amended Plan of Reorganization (“Plan”), pursuant to 11 U.S.C. § 1129. For the reasons hereinafter set forth, confirmation will be denied. BACKGROUND Sybaris Clubs International, Inc. (“Sybar-is” or “Debtor”) is an Illinois corporation organized in 1985. Its sole shareholder i...
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■MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Before this Court are two motions by Niagara Mohawk Power Corporation (“NIMO”) in the adversary proceeding commenced by NIMO against Megan Racine Associates, Inc. (“Debtor”) and Federal Deposit Insurance Corporation (“FDIC”), as.receiver for the New Bank of New England, N.A. NIMO’s first motion, filed November 29,1994,.s...
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MEMORANDUM DECISION DENYING CONFIRMATION Debtor seeks 1 confirmation of his Chapter 11 plan by utilizing the cramdown provision of § 1129(b). 2 He resorts to this procedure because the class of general unsecured creditors (“Class 15”) voted against his plan. And, although there were no objections to confirmation, we still must be satisfied that the plan is in conformity with § 1129. In re ...
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ORDER ON MOTIONS TO RECONSIDER On June 16, 1995, this court entered its Order on Motions for Summary Judgment in this adversary proceeding, which had been brought by debtors following the successful completion of their Chapter 13 plan. In that order, this court determined: That an order entered in June 1991 by the judge to whom the underlying bankruptcy case was .then assigned had been and re...
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*88 MEMORANDUM OPINION This matter comes before the Court on Chrysler Credit Corporation’s (“Chrysler”) Objection to Confirmation of the Chapter 13 plan proposed by Jarrette and Kathy Dews (“debtors”). The parties have asked the Court to establish a standard or standards for the valuation of a motor vehicle retained by a Chapter 13 debtor who agrees, as is required, to pay the se...
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MEMORANDUM DECISION AND ORDER This matter is before the court by way of objection filed by the Chapter 13 Trustee (“Trustee”) to confirmation of the Chapter 13 plan filed by Thomas and Michelle Dingley (“Debtors”). This matter is within the court’s core jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(L), (O). FACTS On May 18, 1995 the Debtors filed their joint voluntary petition seeking reli...
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MEMORANDUM OF DECISION RE: TRIAL ON INJUNCTION AND DECLARATORY RELIEF This Memorandum of Decision constitutes this Court’s findings of fact and conclusions of law pursuant to Fed.R.Bankr.P. 7065, Fed.R.Civ.P. 65, Fed.R.Bankr.P. 7052, and Fed.R.CivJP. 52(a). This Court has jurisdiction over the instant adversary proceed *797 ing pursuant to 28 U.S.C. §§ 157(b)(1), 1334(b). ...
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OPINION AND ORDER DENYING THE U.S. TRUSTEE’S MOTION TO REMOVE CHAPTER 7 TRUSTEE This matter is before the Court pursuant to the U.S. Trustee’s Motion to Remove Rhonda Repp (“Repp”), the Chapter 7 Trustee, from this case and Repp’s objection thereto. Hearings were held on July 24, 25 and 26, 1995 after which the matter was taken under advisement. After due consideration of the pleadings, o...
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DECISION ON DEBTOR’S MOTION OBJECTING TO THAT PORTION OF MORTGAGEE’S PROOF OF CLAIM WHICH APPLIES PRESENT VALUE INTEREST ON MORTGAGEE’S PRE-PETITION ARREARS This matter comes before the Court on the motion of Rita Hardware (“Debtor”), a Chapter 13 debtor seeking an order expunging, voiding, disallowing or reclassifying the proof of claim of Ontra, Inc. (“Ontra”), a secured creditor which ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON ORDER RESOLVING DISPUTED ELECTION AND CONFIRMING ELECTION OF CHAPTER 11 TRUSTEE THIS MATTER came before the Court on August 16, 1995 pursuant to the Official Committee of Unsecured Creditors’ (the “Committee”) Motion of Official Committee of Unsecured Creditors for Resolution of Dispute Concerning Election of Chapter 11 Trustee (the “Motion”). On Aug...
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MEMORANDUM OPINION Debtors maintain that the complaint against them in the above adversary action is untimely and that its filing is not supported by existing law. They seek dismissal of the complaint because it is untimely and imposition of sanctions pursuant to Federal Rule of Bankruptcy Procedure 9011. Plaintiff Cub Cadet Corporation, Inc. (hereinafter “Cub”) insists that the ...
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ORDER DENYING CREDITOR’S MOTION FOR EXTENSION OF TIME TO FILE COMPLAINT AND MEMORANDUM OF LAW THEREON THIS CAUSE came before the Court on September 27, 1995, upon Creditor BARNETT BANK OF TREASURE COAST’S (“Barnett”) Motion for Extension of Time to File Complaint and Memorandum of Law Thereon (the “Motion”), and Debtors’, KENNETH EDWARD MILLER and THEODORA MILLER (collectively the “De...
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OPINION This matter comes before the Court upon the Motion of the Debtor, Ethel G. Smiley, to enjoin Sharon Savings Bank from transferring funds in her bank account to the Internal Revenue Service (“IRS”). At issue is whether the IRS’ post-petition demand for transfer of the Debtor’s funds pursuant to a prepetition notice of levy violates the automatic stay. A hearing on the Motion was held O...
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In this case, we are called upon to revisit the issue of the non-dischargeability, under 11 U.S.C. § 523, of motor vehicle surcharges assessed by the New Jersey Division of Motor Vehicles (“DMV”). In Lugo v. Paulsen, 886 F.2d 602 (3d Cir.1989), the Third Circuit Court of Appeals determined that motor vehicle surcharges were non-dischargeable under 11 U.S.C. § 523(a)(9). A subsequent ...
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ORDER The objection of First Interstate Bank of Arizona to the treatment of its secured claim in debtors’ Chapter 13 plan is submitted for decision. The issue is whether a premium refund of a vehicle service contract is included in the valuation of the secured creditor’s interest in the vehicle. The facts in this case indicate it should. I On February 4, 1994, debtors purchased ...
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MEMORANDUM DECISION The Trustee and Debtor move for an order requiring disgorgement of § 365(d)(3) rents received by two commercial lessors from an administratively insolvent estate. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding under 28 ...
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*593 OPINION Before the Court is the Joint Motion of the Philadelphia Housing Authority (“PHA”) and Philadelphia Gas Works (“PGW”) 1 to Dismiss Chapter 13 Proceedings 2 or in the Alternative for Relief from the Automatic Stay (the “Motion”). PHA contends that Debtor’s Chapter 13 case, which was filed to stay eviction proceedings, and her Chapter 13 plan, whi...
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OPINION Before the Court is the Motion of Secured Creditor Meridian Bank (“Bank”) to Compel the trustee of the Chapter 7 Estate of Yandy, Inc. (“Debtor”) to Abandon Certain Property and for Relief from the Automatic Stay (“Motion”). The United States, by the Internal Revenue Service (“IRS”), filed an objection in which it requested the Court to deny the Motion and to make a determinat...
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DECISION Richard A. Weller filed this chapter 13 case on April 4, 1995 together with a plan in which he proposed to make payments to the *469 chapter 13 trustee of $200 a month for 36 months and to pay a 1% dividend to his unsecured creditors. The court is now asked to rule upon the validity and dischargeability of a $278,928.60 claim filed by the State of Wisconsin and the State’s motion t...
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MEMORANDUM DECISION The debtor, Nohora M. Bernal, (the “Debt- or”), has proposed a Chapter 13 plan which classifies her nondischargeable student loan obligations separately from her other unsecured debts. The plan, as recently modified by the Debtor, provides for 100% payment on the student loans and 25% payment on the other unsecured claims over five years. An unsecured creditor, citing the re...
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MEMORANDUM OPINION This matter comes before the Court on the Objection of Herbert and Margaret Carlson (“Debtors”) to the Second Amended Proof of Claim filed by the Internal Revenue Service (“IRS”). Mr. Carlson is an attorney who operates a law office which currently has a support staff and two attorneys working on a case-by-case basis. Mrs. Carlson is not employed. The Debtors file their...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon Plaintiffs objection to discharge pursuant to 11 U.S.C. § 523(a)(15). Upon evidence presented at trial on September 5, 1995, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Sylvia Darlene Carter (Plaintiff) and Hiram Jimmy Carter (Defendant) dissolved the...
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MEMORANDUM OPINION This matter comes on to be heard upon the Joint Stipulation of Facts filed by Debtor, Barbara J. Willis (“Debtor”), and Lonnie D. Eck, Chapter 13 Standing Trustee for the Northern District of Oklahoma (the “Trustee”). The Court being fully advised in the premises hereby finds as follows: STATEMENT OF FACTS Debtor filed a voluntary petition for relief under Cha...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon A.E. McWilliams’ objection to Confirmation of the Chapter 13 plan of reorganization submitted by Jimmy Sarkese and Sara Anne Sarkese. Upon consideration of the evidence presented at the Confirmation Hearing held on October 10, 1995, legal memoranda and other documentation submitted by the parties, the testimony of wi...
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OPINION Before the Court are (i) Debtors’ Motion to Disallow Claim, (ii) Illinois Department of Revenue’s (“IDOR”) Objection to Debtors’ Motion to Disallow Claim, and (iii) IDOR’s Motion to Allow Claim and to Compel Partial Disgorgement of Assets. IDOR has withdrawn as moot its Objection to Debtors’ Motion to Disallow Claim and Motion to Allow Claim and to Compel Partial Disgorgement ...
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*789 MEMORANDUM OF DECISION ON SUMMARY JUDGMENT MOTION I. INTRODUCTION Defendants James and Edna Stearns attempted to foreclose their deed of trust on property belonging to plaintiff Eun Hoi Hwang, even though she was not in default in her obligations under the note secured by the deed of trust. Only the filing of this chapter 11 bankruptcy ease on the eve of foreclosure pre...
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ORDER This matter came on for hearing on September 18, 1995, on Debtors’ motion to further modify their Modified Chapter 13 Plan, dated July 7,1992, and confirmed September *479 11, 1992. An objection was filed by City-County Federal Credit Union, an unsecured creditor. The Court, having heard and considered the evidence and arguments presented at the hearing; having reviewed the post-hearing...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon defendant’s motion for sanctions against plaintiff and plaintiffs attorney. The Court *849 heard the motion on May 18, 1995, and August 10, 1995. At the May hearing, the Court also heard defendant’s motion for sanctions against plaintiff and plaintiffs attorney in Lloyd T. Whitaker, Tru...
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MEMORANDUM OPINION Hearing was held February 1, 1995, on defendant’s motion to dismiss plaintiffs complaint for failure to perfect service and on defendant’s motion for time to file an amended complaint. Defendant alleged that plaintiff failed to serve the summons and complaint on defendant and defendant’s counsel within 120 days from filing the complaint on August 10, 1994. The court...
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DECISION AND ORDER DENYING DEBTOR’S CLAIM OF EXEMPT PROPERTY Heard on the Chapter 7 Trustee’s Objection, based on alleged concealment of assets, to the Debtor’s claim of exempt property. The travel of this matter and the issues presented herein are as follows: By an Order dated November 28,1994, the Debtor amended his schedule of assets to include $73,522 from a personal injury settle...
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ORDER DENYING DEFENDANT’S MOTION FOR ENTRY OF PARTIAL FINAL JUDGMENT On November 22, 1995, the Court received a letter from the Department of Justice on behalf of the Defendant, the Internal Revenue Service, requesting, inter alia, the entry of partial final judgment in this adversary proceeding. To save time and judicial resources we will treat the letter as a motion, and do not require a respo...
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MEMORANDUM OPINION This matter came before the Court on August 1, 1995, for trial on the merits. The former wife of the debtor seeks a determination that an award of attorney’s fees from a Texas divorce decree is nondischargeable as *518 alimony, maintenance, or support under 11 U.S.C. § 523(a)(5). Having considered the arguments and legal memoranda of counsel, reviewed t...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon the complaint of Trustee Charles W. Grant to recover fraudulent or preferential transfers made within one year of the petition date pursuant to 11 U.S.C. §§ 547 and 548. After a trial on July 26, 1995, the Court enters the following findings of fact and conclusions of law: FINDINGS OF FACT ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon defendants’ motion to dismiss for lack of personal jurisdiction. The motion is filed pursuant to Federal Rule of Civil Procedure 12(b)(2). After considering the pleading, briefs and arguments made at the pretrial hearing held on September 13, 1995, the Court makes the following Findings of Fact and Conclu...
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ORDER GRANTING DEFENDANTS’ REQUEST FOR FINDINGS OF FACT Before the Court is the Defendants’ request for findings of fact regarding our October 5, 1995 Order awarding the Plaintiff attorney fees in the amount of $1,260. Said Order was entered as a sanction for the unnecessary litigation caused by the Defendants’ failure to provide the Trustee with monthly reports as required under a modified cons...
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190 B.R. 396 (1995) In re Darrell Lee TESSIER, and Sharon Yvonne Tessier, Debtors. Bankruptcy No. 94-31615-13. United States Bankruptcy Court, D. Montana. December 8, 1995. *397 Nancy K. Moe, Harold V. Dye, Missoula, Montana, for the Debtors. Doug James, Billings, Montana, Special Counsel for Debtors. Marc D. Stern, American Jewish Congress, New York City (Oliver S. Thomas, Special Counsel, Natio...
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ORDER Currently before the Court in this matter is the Motion for Summary Judgment of Wanda Faye Bell (hereinafter “the Debtor”). The Debtor’s Motion comes as part of an adversary proceeding, filed by her to determine the dischargeability of certain divorce-related obligations owed to William K. Bell, Sr. (hereinafter “the Defendant”), her former husband. As such, the matters involved...
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ORDER GRANTING EXEMPTION THIS MATTER is before the Court on the debtor’s claimed exemption for earnings under Colo.Rev.Stat. § 13-54-104(1)(b) (1994). Harvey Sender, the duly appointed Chapter 7 Trustee (“Trustee”), and the State of Colorado (“State”) have objected to the claimed exemption under 11 U.S.C. § 522(Z) and FRBP 4003(b). The matter came on for hearing on October 10, 1995 an...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon complaint seeking denial of defendant’s discharge pursuant to 11 U.S.C. § 727(a)(2)(A), (a)(4)(A), and (a)(5). Upon evidence presented at trial on August 22, 1995, the Court enters the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Nadine L. Wade (plaintiff) and David K. Wade (defendan...
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MEMORANDUM OPINION AND ORDER This Adversary proceeding relates to the bankruptcy filed in Chapter 11 of the Bankruptcy Code by the debtor-plaintiff, Direct Air, Inc. d/b/a Midway Connection (“Debtor” or “Plaintiff’). The case inter alia seeks to avoid preferential transfers and payments under 11 U.S.C. § 547(b) and § 544. Defendant Fairchild Aircraft, Inc. (“Fairchild”) mov...
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AMENDED MEMORANDUM OPINION Hearing was held May 17, 1995, on defendants’ motions to reconsider the denial of jury trials in four adversary proceedings pending in this court. The court took the matters under advisement. For the reasons stated in this memorandum opinion, defendants’ motions are denied. Findings of Fact 1 The chapter 7 trustee of Debtor John A. Andrews has filed numerous adver...
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AMENDED ORDER Before the Court is the combined contested matter and adversary proceeding commenced by David Askanase, Chapter 11 Trustee (the “Trustee”) of Guyana Development Corporation (“GDC”) to determine the extent, vaKdity, and priority of the claims of the United States. This Court has jurisdiction of this proceeding pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceedi...
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MEMORANDUM OPINION A hearing was held on October 10,1995, on the trustee’s objection to confirmation of the debtor’s chapter 13 plan. The issue is whether the debtor may directly pay an un-dersecured automobile loan in full outside the plan when unsecured creditors are being compromised at 25%. The trustee objects that such disparate treatment violates § 1322(b)(1), Bankruptcy Code, by di...
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MEMORANDUM OPINION Trial was held July 14, 1995, on the complaint of P.K.R. Convalescent Centers, Inc., and Emporia Health Investors, L.C., for declaratory judgment and injunctive relief. Plaintiffs seek an injunction against the Commonwealth of Virginia, Department of Medical Assistance Service, prohibiting DMAS from pursuing collections against a prospective purchaser of estate prop...
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MEMORANDUM OF DECISION On the record in open court on November 14, 1995, this Court ruled that for purposes of cramming down a Chapter 11 Plan under 11 U.S.C. § 1129(b) over the objection of a creditor who holds a lien on the Debtor’s real estate, the Debtor is not entitled to subtract the hypothetical costs of a hypothetical sale 1 from the collateral’s fair market value for p...
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ORDER This matter came before the Court June 8, 1995, on motion of Mary Boerbon Nelson *749 (Debtor) to modify her confirmed Chapter 13 Amended Plan. Patrick Dunbar and Jane Molitor (Respondents), who are creditors of the Debtor, object. Appearances were noted on the record. The Court, having reviewed and considered the evidence received; having heard arguments of counsel; an...
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OPINION The issue before the Court is whether a foreclosure action filed against a creditor of the Debtors violated the automatic stay of 11 U.S.C. § 362(a)(1) and (3). The Debtors, Edward and Helen Smith, filed a petition pursuant to Chapter 12 of the Bankruptcy Code on March 21, 1995. In their schedule of Unexpired Leases, the Debtors listed a 60/40 crop share agreement with Helen Gorham. The...
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*573 MEMORANDUM OF DECISION This single asset Chapter 11 case is before the court for determination of whether the debtor’s Second Amended Plan of Reorganization, dated September 11, 1995 (the “September 11 plan”), should be confirmed. Based on the facts adduced at the hearings on this matter, and for the reasons set forth below, the court finds that the plan generally satisfies ...
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MEMORANDUM OPINION This matter came before the court on October 24, 1995, on Ohio National Insurance Company’s (“Ohio National”) (1) Continued Motion for Relief from Stay and (2) Objection to Confirmation of the Debtor’s First Amended Plan, and Atrium High Point Lim *602 ited’s (“the Debtor”) (1) Motion for Authority to Use Cash Collateral and (2) Motion to Confirm and Cram D...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE VALIDITY AND EXTENT OF CERTAIN ASSERTED TAXES AND CLAIM FOR REFUND At issue in this core proceeding 1 for determination of tax liability 2 is whether a deduction claimed by the debtor on his 1989 tax return is properly classified as a business bad debt under the Internal Revenue Code (“I.R.C.”). It is the defendant’s posit...
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OPINION I. FACTS On August 23, 1989, the debtor, Jordan H. Chappel (“Chappel” or “debtor”), filed for bankruptcy relief under chapter ll. 1 On August 19,1989, four (4) days before the debtor filed his petition, the debtor’s mother, Nadine M. Hunter (“Hunter” or “testatrix”) died. At the time of her death, Hunter was a resident of California and the assets in her estat...
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Opinion I. ISSUES The questions raised by this appeal are whether: 1) an unrecorded deed of trust on real property creates a security interest under California law in the proceeds from the sale of the subject real property; 2) debtors’ actions in selling property subject to an unrecorded deed of trust and using the proceeds to purchase other property gave rise to a nond...
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MEMORANDUM OF DECISION Debtor Ronald Mingo filed for Chapter 7 reHef on June 17,1994. He filed a motion to avoid the judicial Hens on his homestead real estate claimed by creditors United States Automobile Association (“USAA”) under a judgment recorded on August 3,1983, and by Eugene and Earlene Ast (“Ast”) under a judgment recorded on August 29, 1984. The real estate in which Debtor asserts ...
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190 B.R. 433 (1995) In re Michael Allen ANTHONY, Debtor. Danielle R. ANTHONY, Plaintiff, v. Michael Allen ANTHONY, Defendant. Bankruptcy No. 94-07114-BGC-7. Adv. No. 95-00022. United States Bankruptcy Court, N.D. Alabama, Northern Division. September 29, 1995. *434 *435 Suzanne Carlson, Birmingham, AL, for Defendant-Debtor. Bruce Burttram, Birmingham, AL, for Plaintiff. MEMORANDUM OPINION ON COMP...
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ORDER DENYING DEBTOR’S MOTION TO ALTER OR AMEND JUDGEMENT This matter is before the Court on a Motion to Alter or Amend Judgement filed by the Defendant-Debtor. The order subject to the motion followed a trial on a complaint to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(15). The order was entered on September 29, 1995 along with a memorandum opinion finding that a deb...
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OPINION OVERVIEW The Chapter 7 1 trustee (“the trustee”) has appealed summary judgment in favor of Southern California Bank (“the bank”). The bank had obtained a temporary lien on the personal property of Reuben and Maureen Hilde (“the debtors”) by serving subpoenas upon them to attend judgment debtors’ examinations. See Cal.Civ.Proc.Code § 708.110 (West 198...
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ORDER ON APPLICATION FOR ADDITIONAL ATTORNEY’S FEES This matter is before the Court on an Application for Additional Compensation for the Attorneys for the Debtors filed by Steven D. Altmann, the attorney for the Debtor. This Court’s Order of Confirmation entered on September 26, 1994 awarded compensation of $850.00 to Mr. Altmann’s law firm. The Court considered this amou...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF STUDENT LOAN DEBT This matter came before the Court on a Complaint to Determine Dischargeability of a Debt filed by the Debtor. After notice, a trial was held on September 13, 1995. Mr. Danny Carl Halverson, the Debtor; Mr. M. Wayne Wheeler, his attorney; Ms. Pat Comer, attorney for Pennsylvania Higher Education Assistance Agency...
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ORDER ON APPLICATION FOR ADDITIONAL ATTORNEY’S FEES This matter is before the Court on an Application for Additional Attorney’s Fees filed by Ted Stuckensehneider, the attorney for the Debtor. When the case was filed on August 9,1994, another attorney represented the Debtors. On May 3, 1995 the case was dismissed because the Debtors failed to make their monthly plan payments. O...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY (Motion for Summary Judgment filed by the Defendant) This matter is before the Court on a Complaint to Determine Dischargeability of a *836 child support debt in a chapter 7 bankruptcy-case. The Complaint was filed on November 10, 1994. On May 24, 1995, the Defendant filed a Motion for Summary Judgment. On Jun...
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ORDER OVERRULING DEBTOR’S OBJECTION TO CLAIMS Heard on November 7, 1995, on Debtor’s Objections to various claims. We took under advisement the objections to the claims of Alex J. Ettl and Sculpture House (claim numbers 10, 11, and 12). The claims of Ettl/Sculpture House stem from an agreement dated October 24, 1984, whereby Ettl agreed to enlarge six of Felix DeWeldon’s Iwo Jima Monument replic...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding came on for hearing before the Court on November 7, 1995 on a Motion for Partial Summary Judgment filed by the New Hampshire Higher Education Assistance Foundation and on a Motion for Summary Judgment filed by the plaintiffidebtor, John Stephen Flynn, both motions relating to plaintiffs Amended Complaint to Determine the Di...
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OPINION Some time ago I ruled that Maxwell Newspapers, Inc. (“Maxwell Newspapers”), a chapter 11 debtor, was not liable to Mirror Group Newspapers, pic and certain of its affiliates (collectively, “MGN”) for the diversion of MGN’s assets to Maxwell Newspapers by their common principals because the diverted assets were promptly transferred to still other entities controlled by the prin...
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ORDER DENYING MOTIONS FOR RELIEF FROM STAY The three eases subject to this order are not consolidated but are connected by a common issue. That issue is whether a rent-to-own agreement is a lease for rental of property or is a security agreement representing a sale of property. In each case the non-debtor merchant has asked this Court for relief from the automatic stay to allow it to pursue wha...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT This adversary proceeding came on before the Court for trial. The Plaintiff (“ITT”) appeared by its attorney, Daniel W. Stauner. The Defendant (“the Debtor”) appeared personally and by her attorney, James A. Lee, Southern Minnesota Regional Legal Services. Upon the evidence adduced at trial, counsel’s pre-and post-trial briefs a...
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MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW ON FAIRLY BIKE AND MING-TAY’S MOTIONS TO DISMISS This Adversary proceeding relates to bankruptcy cases filed by Schwinn Bicycle Co. and various related entities (collectively “Debtor” or “Schwinn”) under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Schwinn’s liquidating Plan was confirmed. On...
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MEMORANDUM OPINION Debtor, Wahid Elebrashy, filed his chapter 13 petition on June 5, 1991. His plan was confirmed on August 21, 1991; he made timely payments under the plan and received his discharge on September 2, 1994. Ele-brashy reopened his case on February 14, 1995 in order to file a complaint to determine dischargeability of two student loans aggregating nearly $80,000. He alleged that p...
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MEMORANDUM OPINION This matter comes before the Court upon the objection of John E. Mitchell, Jr. (“Mitchell”), to confirmation of the Chapter 13 reorganization plan submitted by Herman Andrew Martin (“Martin” or the “Debtor”), filed in this Court on June 2, 1995. Mitchell objects to the Debtor’s plan on several grounds, alleging primarily that the Debtor did not submit his plan in good faith...
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MEMORANDUM OF DECISION In this adversary proceeding, Bombardier Capital, Inc., (“Bombardier”), seeks a determination that certain obligations owed to it by Richard Baietti (“Baietti” or “debtor”) are excepted from discharge under § 523(a)(2)(A) of the Bankruptcy Code.1 For the reasons set forth below, I conclude that Baietti’s debt to Bombardier in the amount of $25,107.30 is excepted from disc...
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MEMORANDUM OF DECISION Before the court is Randell P. Masterson’s complaint seeking a declaration that a certain post-petition foreclosure sale conducted by defendant Berkeley Federal Bank & Trust, FSB (“Berkeley”), is void as a violation of § 362’s automatic stay. 1 For the reasons set forth below, I conclude that the sale is not void and that judgment shall enter for Berk...
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MEMORANDUM OPINION This matter comes before the Court on Motion by Bruce H. Matson, trustee in Bankruptcy (the “Trustee”) for Christopher L. Heater and Adrianne D. Heater (the “Debtors”), objecting to certain exemptions claimed by the Debtors. This is a core proceeding, over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(B) and 1334. The parties have stipulated t...
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*650 MEMORANDUM OPINION Hearing was held on September 20, 1995, on the objection of Alan and Janet Nash to the notice of sale by the debtors’ trustees in bankruptcy to sell real property. For the reasons stated in this memorandum opinion the Nashes’ objection is sustained, and approval of the proposed sale is denied. Findings of Fact Debtors, John F. McMahon, Jr., and his wife Catherine...
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*717 MEMORANDUM OPINION This adversary proceeding comes before the Court on the second amended complaint filed by P & S X-Ray Company, Inc. (“PSX”) against Peter H. Dawes (the “Debtor”) pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(6) to determine the dischargeability of a debt owed to PSX by the Debtor. For the reasons set forth below, the Court hereby holds that the debt is...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiff, Behrman Chiropractic Climes, Inc. (hereinafter “Behrman”), seeking a determination by this Court that the discharge of the debtor/defendant, Gerald Johnson (hereinafter “debtor”), is due to be denied pursuant to 11 U.S.C. § 727(a)(2)(A), (4)(A). The trial in this matter was held on the 27th day of No...
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MEMORANDUM OPINION The Chapter 13 debtors filed their petition on February 27, 1995. The American Pacific Bank, successor in interest to Santiam Valley Bank, (hereinafter referred to as “Bank”) objected to the terms of their proposed plan wherein it was to be paid as a secured creditor in the amount of $32,400 with the balance of the $61,227 obligation treated as unsecured. The Bank argues that...
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MEMORANDUM OPINION JURISDICTION Jurisdiction of this court is proper pursuant to 28- U.S.C. § 1334(a), 28 U.S.C. § 157(a), (b)(1) and (2), and Local Rule 29 of the United States District Court for the Eastern District of Washington. This is a core proceeding pursuant to 28 U.S.C. § 157. ISSUE The sole issue addressed in this opinion is whether or not the “public pro...
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OPINION A INTRODUCTION The instant contested matter presents the issue of whether a Chapter 13 debtor may cure, in his Chapter 13 plan, a default in a nonresidential mortgage obligation which matured pre-petition. While recognizing that 11 U.S.C. § 1322(c)(2) is of no help to the Debtor, we also note that 11 U.S.C. § 1322(b)(2), which is the statutory basis of the content...
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OPINION A INTRODUCTION Before the court is an objection (“the Objection”) to a claim filed by the Pennsylvania Department of Labor and Industry (“L & I”) which asserts a priority tax claim under 11 U.S.C. § 507(a)(7)(E) (now § 507(a)(8)(E)), against SACRED HEART HOSPITAL OF NORRISTOWN d/b/a SACRED HEART HOSPITAL AND REHABILITATION CENTER (“the Debtor”) for reimbursement of a ...
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The debtor commenced this adversary proceeding to secure the hardship discharge of two educational loans. As with all such controversies arising in the Second Circuit, this relief hinges upon the three part test that the Court of Appeals set forth in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir.1987). At issue in this case is the third prong of that test, whet...
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DECISION Trustee’s complaint seeks avoidance and recovery of allegedly preferential transfers from debtor to his lawyers. Trial was held November 14,1995, in Mason City. This is a core proceeding under 28 U.S.C. § 157(b)(2)(F). Habbo G. Fokkena, the trustee, appeared as his own attorney. Michael G. Byrne appeared for the defendant, Winston, Reuber & Byrne, P.C. (hereafter “FIRM”). The...
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MEMORANDUM OPINION AND ORDER This adversary proceeding was submitted for decision on stipulated facts and briefs. Upon consideration thereof, and of the rec *420 ord herein, this Court finds, concludes and orders as follows. FINDINGS OF FACT The parties have stipulated to certain facts; and other facts, which help explain and properly frame the issue(s) here...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT There comes on for consideration plaintiffs motion for summary judgment and defendant’s response thereto, whereupon the Court determines, concludes, and orders as follows. *819 On September 12, 1995, plaintiff Tom Fil-beek d/b/a Filbeck Law Office (“Filbeck”) filed Ms complaint commencing tMs adversary proceeding under 11 U.S.C....
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ORDER RE: DEBTORS’ MOTION TO ENJOIN SHERIFF’S SALES ORDER RE: CREDITORS’ MOTION FOR RELIEF FROM STAY The matter before the court is a request by Paul and Marcia Kampen that the court enjoin two sheriffs sales scheduled for December 18, 1995, in Humboldt County. The sales were requested by Berl and Madelyn Priebe, who have obtained special and general executions against real property now v...
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190 B.R. 346 (1995) In re Steven J. DERRICK, Margaret M. Derrick, Debtors. Steven J. DERRICK and Margaret M. Derrick, Plaintiffs, v. RICHARD L. GRAFE COMMODITIES, INC., Defendant. Bankruptcy No. 93-10404-12. Adv. No. A93-1028-12. United States Bankruptcy Court, W.D. Wisconsin. October 13, 1995. *347 *348 *349 Guy K. Fish, Milton, WI, for Plaintiffs. William P. Skemp, La Crosse, WI, for Defendant....
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The matter presently before the Court is the confirmation of the debtors’ chapter 13 plan. The Baraboo National Bank has objected to confirmation for two reasons. First, the bank contends that the debtors have undervalued their homestead, upon which it claims assorted liens. Second, the bank objects to the plan provision whi...
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ORDER RE: COMPLAINT TO AVOID TRANSFER The matter before the court is the final trial of the trustee’s complaint to avoid the mortgage granted by the debtors to defendants. Trial was held September 5 and 6, 1995 in Mason City, Iowa. Larry S. Eide appeared for himself as attorney for the trustee. David J. Siegrist appeared for the defendants. The court now issues its findings of fact an...
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MEMORANDUM OPINION AND ORDER This litigation arises out of a failed lending relationship between Harry Krug, a cattle rancher, and the Peoples State Bank & Trust Company of Ellinwood, Kansas (PSB). When Krug failed to make timely payments and his financing negotiations with another bank stalled, PSB repossessed most of the cattle and commenced foreclosure proceedings. Krug raised lend...
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*13 SUMMARY JUDGMENT DECISION ON SECURED CLAIM OF CHARLES ARMENT Steven Weiss, the trustee in this chapter 7 case (which was converted from chapter 11 after confirmation) (the “Trustee”), seeks a declaratory judgment concerning the rights of various parties claiming liens and interests in real estate standing in the name of Thunderbolt Realty Trust (the “Debtor”). The defenda...
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OPINION AND ORDER DENYING COMPLAINT AND EXCEPTING DEBTS FROM DISCHARGE This matter is before the Court upon Debt- or Steve Williams’ (the “Debtor”) adversary *679 complaint which seeks to discharge the Debt- or’s obligation, imposed by a divorce decree (the “Decree”), to repay certain credit card debts incurred during his former marriage to LaVon Williams (“LaVon”). The Court finds that the D...
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MEMORANDUM OPINION Before the Court is the Texas Lottery Commission’s Complaint to Determine Dis-chargeability of a debt pursuant to 11 U.S.C. § 523(a)(4). The Court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. §§ 1334(b), 157(a) and (b), and the standing order of reference in district for bankruptcy cases and proceedings. This is a core proceeding. I. Findings of Fac...
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OPINION AND ORDER GRANTING DAMAGES FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY, DENYING COUNTERCLAIM AND DENYING MOTION FOR SANCTIONS PURSUANT TO FED. R.BANKR.P. 9011 This matter is before the Court upon Judith Meis-Nachtrab’s (the “Debtor”) adversary complaint against Sharon Griffin (“Griffin”), the Debtor’s former domestic relations counsel, which complaint seeks damages for Griffin’s a...
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ORDER ON APPLICATION FOR ADMINISTRATIVE ' EXPENSE THIS MATTER came on for hearing on the application of Tappouni Mechanical, Inc. *121 (Tappouni) of the allowance of an administrative expense in this yet to be confirmed chapter 11 ease. The claim is based on damages allegedly incurred as the result of the debtor’s post-petition breach of a pre-petition contract...
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ORDER ON DEBTOR’S MOTION FOR AMENDMENT OF FINDINGS OF FACT AND RECONSIDERATION AND/OR REHEARING OF THE FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER GRANTING IN PART AND DENYING IN PART DEBTOR’S MOTION FOR SUMMARY JUDGMENT AND GRANTING TRUSTEES MOTION FOR SUMMARY JUDGMENT This matter came before the Court for hearing on October 26, 1995 upon the Debt- *126 or’s Motion...
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OPINION PROCEDURAL BACKGROUND This case arises from an objection to a $291,458 fee application made by debtor’s special criminal counsel, Ferrara & Hant-man, heard on September 6, 1995. This court has jurisdiction over the matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157(b)(2)(A), (B) and (0). FACTS Debtor, William Engel (“debtor”), is serving a life sentence in Tren...
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190 B.R. 16 (1995) In re Carl A. FIELDS, Jr., Debtor. Bankruptcy No. 95-10808-JEY. United States Bankruptcy Court, D. New Hampshire. December 5, 1995. *17 Lawrence P. Sumski, Trustee, Amherst, NH. David Cline, Nashua, NH, for debtor. Order JAMES E. YACOS, Chief Judge. This chapter 13 case came on for a continued confirmation hearing before the Court on November 17, 1995 on an Amended Chapter 13 ...
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MEMORANDUM OPINION Before the Court in this core proceeding is Count II of the complaint of Continental Bank requesting a finding that the debt of Maytor H. McKinley (Debtor) to Continental Bank is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). At the close of Continental Bank’s case, Debtor’s Motion for Directed Verdict on Count I of the complaint, which stated a cause of action under § 5...
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MEMORANDUM Hearing was held on September 29, 1995, on the Motion to Allow Claim filed by United States of America on behalf of the Internal Revenue Service (IRS). Appearances: Tami Weissert, Attorney for trustee; Robert Met-calfe, Attorney for IRS; Henry Carriger, Attorney for IRS; T. Randall Wright, Attorney for Estate of Papp; Robert Ginn, Attorney for Petitioning Creditors; and Wm....
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MEMORANDUM OF OPINION ON MOTION TO REJECT EXEC-UTORY CONTRACT THIS MATTER came on for hearing on the debtor’s Motion for Authorization to Reject Executory Contract in this yet to be confirmed Chapter 11 ease. The executory contract which the debtor seeks to reject is a franchise agreement between Kwik Kopy Corporation (“KKC”), franchisor, and the debtor, Printronics, Inc., franchisee....
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MEMORANDUM OF OPINION Before the court is the Application of Jones, Day, Reavis & Pogue, counsel for the Prudential Insurance Company of America (the “Applicant”) for Reimbursement of Attorney’s Fees and Expenses Pursuant to Paragraph 3.10 of the Debtor’s Plan and § 506(b) of the Bankruptcy Code. Prudential seeks reimbursement for counsel fees in the amount of $96,858.50, and reimbursemen...
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190 B.R. 225 (1995) In re Debra A. WILLIAMS, Debtor. Debra A. WILLIAMS, Plaintiff, v. UNITED STATES of America, INTERNAL REVENUE SERVICE, Defendant. Bankruptcy No. 95-22338-BM. Adv. No. 95-02334-BM. United States Bankruptcy Court, W.D. Pennsylvania. December 28, 1995. *226 Dolores Innamorato, Olds & Innamorato, Pittsburgh, PA, for Plaintiff. Robert S. Attardo, Trial Attorney, Tax Division, U....
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MEMORANDUM OPINION The chapter 7 trustee has objected to an exemption claimed by debtor in the cash surrender value of an insurance policy she purchased insuring the life of her husband. He asserts that the Pennsylvania statute upon which the claimed exemption is based does not apply to the cash surrender value of a life insurance policy. In accordance with the analysis set forth below, we will...
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OPINION THIS MATTER is before the court upon the motion by Dunkin’ Donuts Inc. and Third Dunkin’ Donuts Realty, Inc. to Vacate the Automatic Stay and for Mandatory Abstention in the administratively consolidated bankruptcy eases of Egyptian Brothers Donuts, Inc., and Al-Fajr Corp. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Standing Order of Refere...
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MEMORANDUM OPINION This matter.comes before the Court on the objection of David E. Grochocinski, the Chapter 7 trustee (the “Trustee”) to the. Debtor’s claimed exemptions to two retirement accounts referred to herein by their popular acronyms: an IRA and a Keogh. For the reasons set forth herein, the Court hereby overrules the objection and allows the claimed exemptions. I. ...
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MEMORANDUM OPINION Trim-Pak, Inc. and The Richards Group, Inc. (collectively hereinafter called “moving creditors”) filed an emergency motion in the above proceeding to validate the election of a permanent trustee under Federal Rule of Bankruptcy Procedure (“Bankruptcy Rule”) 2003. Foothill Capital Corporation (“Foothill”) objected. To elect a trustee, creditors holding at least twent...
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190 B.R. 88 (1995) In re Judy K. PARRIMAN, Debtor. James E. STONE, Plaintiff, v. Judy K. PARRIMAN, Defendant. Bankruptcy No. 95-60191. Adv. No. 95-6020. United States Bankruptcy Court, E.D. Kentucky, Corbin Division. December 19, 1995. *89 Marcia A. Smith, Corbin, Kentucky, for plaintiff. Willis Cunnagin, London, Kentucky, for debtor/defendant. MEMORANDUM OPINION WILLIAM S. HOWARD, Bankruptcy Ju...
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OPINION Before the Court is the Motion of the United States Trustee (the “UST”) for Hearing to Determine Trustee Conflict of Interest (the “Motion”). The Motion seeks to disqualify Larry Waslow (“Waslow”), the permanent trustee elected by creditors pursuant to 11 U.S.C. § 702. The record of this Motion consists of the parties’ Stipulation of Facts (the “Stipulation”) and the testimony...
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OPINION Lawrence Harold Kritt (“debtor”) is a chapter 7 debtor. Martha Kritt (“Martha”) filed an adversary proceeding against the debtor, seeking to have the debtor’s obligation to Martha determined to be nondis-chargeable. After a trial, the bankruptcy court held the debt was nondischargeable under 11 U.S.C. § 523(a)(5). The debtor appeals. We AFFIRM. FACTS The debtor and Marth...
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DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The present adversary proceeding is related to the defendant-debtor’s Chapter 7 bankruptcy case. The complaint asserts a claim of nondischargeability pursuant to 11 U.S.C. § 523(a)(15). 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 p...
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DECISION AND ORDER ON PLAINTIFFS’ MOTION RE COUNTERCLAIM This adversary proceeding involves a lease dispute between debtor Transicoil, Inc., a subsidiary of debtor Eagle-Picher Industries, Inc., and Blue Dove Development Associates (“Blue Dove”), the lessor of premises leased and occupied, by Transicoil. In the complaint, plaintiff Transicoil asserts numerous claims against Blue Dove that arise ou...
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ORDER OVERRULING OBJECTION TO CONFIRMATION This matter is before the Court on the objection of the Client’s Security Fund of Ohio (“CSFO”) to confirmation of the second amended chapter 13 plan proposed by James F. Anadell. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding which this b...
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190 B.R. 453 (1995) In re Herman M. WEISSER, Debtor. Bankruptcy No. 95-1047-BKC-3P3. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. December 12, 1995. Tyrie A. Boyer, Jacksonville, Florida, for Debtor. Gary L. Butler, Daytona Beach, Florida, Mamie L. Davis, Jacksonville, Florida, for Trustee. FINDINGS OF FACT AND CONCLUSIONS OF LAW GEORGE L. PROCTOR, Bankruptcy Judge. This ...
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MEMORANDUM OPINION This matter is before the Court on the plaintiffs’ Motion for Summary Judgment, filed herein on November 17, 1995, on the issue of the dischargeability of defendant’s debt to the plaintiffs. This matter has been briefed extensively by both the plaintiffs and the defendant. The parties have also filed a Joint Stipulation of Facts for consideration by the Court. This ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon plaintifPs motion for partial summary judgment as to Count I of the Complaint and defendant’s motion to dismiss the complaint. After consideration of the pleadings, briefs and arguments made at the hearing held on October 25, 1995, the Court enters the following Findings of Fact and Conclusion...
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DENNIS D. O’BRIEN, Chief Judge. This matter came on for hearing October 25, 1995, on motion to lift the automatic stay pursuant to 11 U.S.C. § 362, by FCS of Mankato, Inc. (FCS). Appearances were noted on the record. The Court, having received and considered the moving papers, arguments of counsel, and otherwise being fully advised on the matter, now enters this *107 ORDER in accordance with ...
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DECISION RESOLVING MOTION FOR SUMMARY JUDGMENT AND ADVERSARY PROCEEDING This ease raises the question whether a tenant or optionee of mortgaged premises, who is otherwise a stranger to the mortgage indebtedness, can block foreclosure sale of the premises by filing a Chapter 13 petition, de-accelerating and reinstating the mortgage and paying the arrears in a Chapter 13 plan. Defendan...
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190 B.R. 471 (1995) In the Matter of M4 ENTERPRISES, INC., Debtor. Bankruptcy No. A95-65456-WHD. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. December 27, 1995. *472 *473 Paul H. Anderson, Jr., Trustee, Burton & Anderson, Atlanta, Georgia. Mark Marani, Small, White & Marani, P.C., Atlanta, Georgia, for Harvey Mays. ORDER W. HOMER DRAKE, Jr., Bankruptcy Judge. This matt...
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Before this Court is the final application (hereinafter, “Final Application”) of Donovan, Leisure, Newton & Irvine (hereinafter, “Applicant” or “Donovan”), former counsel to the Debtor-in-Possession, Kliegl Bros. Universal Electric Stage Lighting Co., Inc. (hereinafter, “Kliegl Bros.” or the “Debtor”), for allowance of compensation and reimbursement of expenses. Objections to the Fin...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court for confirmation of debtors’ Chapter 12 plan. C. Victor Butler, Jr. (Butler), a secured creditor, objected to the plan. The Court heard the objection and received evidence regarding confirmation at a hearing held on November 7,1995, and the Court now enters the following findings of fact and conclusions of law: FINDING...
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*451 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon a complaint to determine the dischargeability of a debt arising from a divorce decree. Plaintiff alleges that the parties’ separation agreement required defendant to assume an automobile debt, that this obligation was intended as part support, and that the debt is nondischargeable pursuant to 11 U.S.C. § 523. ...
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190 B.R. 297 (1995) In the Matter of HOLLY'S, INC., Debtor. Bankruptcy No. 91-84931. United States Bankruptcy Court, W.D. Michigan. December 29, 1995. Thomas C. Clinton, Grand Rapids, Michigan, for Debtor Holly's, Inc. James D. Clarke, Assistant Attorney General, Lansing, Michigan, for the State of Michigan. OPINION REGARDING MOTION TO SET ASIDE STATE OF MICHIGAN TAX LIEN JAMES D. GREGG, Bankrup...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT This proceeding came on for hearing on November 8,1995, on the defendant’s motion for summary judgment. John M. Koneck and Jon C. Nuekles appeared for the defendant. Bradley J. Halberstadt appeared for the plaintiff. This court has jurisdiction pursuant to 28 U.S.C. §§ 157(a) and 1334 and Local Rule 201. This is a core proceeding within the meaning ...
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MEMORANDUM OPINION On May 12, 1995 Farm Credit Bank of Texas (the “Bank”) instituted this adversary proceeding to obtain a declaratory judgment that its foreclosure on 327.999 acres in Fort Bend County, Texas was valid. After the Gayles (“Debtors”) counterclaimed, the Bank filed a motion for summary judgment on August 17, 1995 in favor of its request for declaratory judgment and against D...
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MEMORANDUM OPINION This matter conies before the Court on Motion to Reopen Case filed by Ronald E. Berry (“Debtor”). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(A), (I) and (O). The Court held a hearing on this matter on September 21, 1995. Based on the" evidence presented at that hearing, 1 the Court enters these findings of fact and conclusions of law in compliance w...
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ORDER ON MOTION FOR ASSESSMENT OF ATTORNEY’S FEES THIS is the latest chapter in the on-going attempts by the United States to collect taxes owed by the Debtors, which were paid through their Chapter 13 and ultimately discharged in 1988. Brief recitation of the history of this case should be helpful in resolving the issue currently before the Court. On January 25, 1988, the Debtors were granted a d...
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ORDER DENYING MOTION TO DISMISS COMPLAINT This is a Chapter 12 case in which a creditor, New Venture Partnership has filed a complaint objecting to the dischargeability of its debt under §§ 523(a)(2) and 523(a)(6). The corporate debtor has filed a motion to dismiss the complaint, asserting that § 523(a) exceptions are applicable only to individual debtors. The court considered this motion at a reg...
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MEMORANDUM OF DECISION ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT I. The issue to be decided is whether an asset, scheduled by the debtors in their Chapter 7 joint petition, but not administered by the trustee prior to the closing of the case, is deemed irrevocably abandoned and not available to the trustee after the debtors’ ease is reopened. The appearing defendants (the “Mova...
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MEMORANDUM OPINION This matter comes before the Court on a complaint filed by John C. Tarrant (the “Debtor”) against the City of Douglas, Georgia (the “City”). This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(A) and (O). The Court held a trial on Debtor’s complaint on October 17,1995. Based on the evidence presented during the trial, the Court finds in favor of Debtor and aga...
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ORDER ON STATUS CONFERENCE TO DETERMINE STATUS OF ADVERSARY PROCEEDING THIS MATTER came before the Court upon an Order of Transfer from the United States District Court for the Southern District of Florida dated August 24, 1994 and filed with this Court on September 7, 1995, wherein the District Court, upon mandate issued by the Eleventh Circuit Court of Appeals, transferred the above-styled adv...
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OPINION Introduction On September 28, 1994, the Mercer County Tax Claim Bureau (“Tax Claim Bureau”) conducted a tax sale (the “Tax Sale”) of various properties on which delinquent taxes were owed. Among the properties sold were the residence of Joseph Rodrigues (“Rodri-gues”) located at 188 Elm Avenue, Sharon, Pennsylvania, and the residence of Jennifer Golden (“Golden”) loca...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Motion for Judgment on the Pleadings filed by the Plaintiff, Cargocaire Engineering Corp. (“Cargocaire”), in its adversary proceeding against the Debtor and the Chapter 7 Trustee. Through its Complaint, Cargocaire seeks a declaratory judgment that “the plaintiffs claim is secured by all property of the estate, except for p...
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MEMORANDUM OPINION AND ORDER INTRODUCTION The issue presented in this objection to confirmation is the time in which a Chapter 13 debtor has to cure the default on a note which matured pre-petition under § 1332(c)(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 Court for ...
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MODIFIED ORDER GRANTING MOTION FOR SANCTIONS AGAINST ATTORNEYS MICHAEL J. FRANK AND MICHAEL BROOKS THIS MATTER came before the Court based on two letters written to the Court by Debtor’s counsel, with copies to opposing counsel, dated July 31, 1995 and August 2, 1995 respectively, requesting that the Court consider the letters a request for rehearing and/or clarification of this Court’s Order...
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190 B.R. 327 (1995) In re Kevin L. MURPHY, Debtor. CHASE MANHATTAN BANK, Plaintiff, v. Kevin L. MURPHY, Defendant. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Plaintiff, v. Kevin L. MURPHY, Defendant. Bankruptcy No. 95 B 03977. Adv. Nos. 95 A 00522, 95 A 00523. United States Bankruptcy Court, N.D. Illinois, Eastern Division. December 21, 1995. *328 Steven B. Levit, Levit and Lipshutz,...
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190 B.R. 459 (1995) In re Kristen TAYLOR, Debtor. Bankruptcy No. 95-12643-BKC-AJC. United States Bankruptcy Court, S.D. Florida. December 8, 1995. *460 Bernard I. Rappaport, Miami, FL, for Debtor. Joseph Cvelbar, Plantation, Florida, for Creditor. MEMORANDUM DECISION AND ORDER GRANTING DEBTOR'S MOTION PURSUANT TO 11 U.S.C. § 362(h) FOR DAMAGES FOR WILLFUL VIOLATION OF AUTOMATIC STAY AND FOR DETER...
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MEMORANDUM OPINION Green Rivers Forest, Inc., (“Debtor”) initiated this Motion To Revoke Permission To Practice Pro Hae Vice And For Sanctions Under Rule 11 Of The Federal Rules Of Civil Procedure 1 against Aetna Life Insurance Company and its counsel Hebb & Gitlin (collectively “Aetna”). Based on the following analysis, the Court will deny Debtor’s motion. FINDINGS ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION The issue presented is the proper amount and the status of a claim to be allowed from a commercial lease between the debtors and their landlord creditor. *363JURISDICTION 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 Distr...
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Memorandum Opinion on the Debtor’s Motion for Order Requiring the Taylors to Execute Deed On April 13, 1995 this Court entered an order and accompanying memorandum opin*916ion on a complaint to avoid preferential transfer filed by the debtor and on a counterclaim filed by the defendants. In the memorandum opinion the Court described the contractual relationship of the parties as that relationsh...
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*659 ORDER DENYING THE TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT WITH STEVEN R. SPEIR AND DONNA C. SPEIR This matter is before the Court on the Motion of Thomas E. Reynolds, as Trustee for the Bankruptcy Estate of Steven R. Speir, for Order Approving, Pursuant to 11 U.S.C. § 105 and Bankruptcy Rule 9019, Compromise and Settlement with Steven R. Speir and Donna C...
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MEMORANDUM OPINION This matter came before the Court for trial on the Complaint to Determine Dis-chargeability of Debt filed by Mr. Rodney C. Porterfield and Mrs. Cathy C. Porterfield. Mrs. Cathy C. Porterfield, one of the plaintiffs, Mr. Wilbur L. Cornner, the defendant, Mr. C. Jackson Perkins, the attorney for the plaintiff, and Mr. Rodger M. Smitherman, the attorney for the ...
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MEMORANDUM OPINION This matter came before the Court for trial on the Complaint to Determine Dis-chargeability of Debt filed by Mr. Joseph M. Dorian. Mr. Joseph M. Dorian, the plaintiff; Mr. Wilbur L. Cornner, the defendant; Mr. J. Haran Lowe, Jr. and Mr. David L. Rawls, attorneys for the plaintiff; and Mr. Rodger M. Smitherman, attorney for the defendant, appeared. The matter ...
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ORDER GRANTING MOTION TO ASSUME EXECUTORY CONTRACT This matter is before the Court on the Debtor’s Motion to Assume Executory Contract and on an Objection to Debtor’s Motion to Assume Executory Contract filed by Jim and Anne Taylor. After notice a hearing was held on July 6,1995. Robert Rubin and Tim Lupinacci, attorneys for the Debtor; Charles Cleveland, attorney for the Taylors; Jim and...
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MEMORANDUM OPINION The Chapter 12 Trustee (the “trustee”) objects to confirmation of debtor’s Chapter 12 plan on the grounds that the plan permits the debtor to make direct payments to impaired secured creditors. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (L) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set fo...
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MEMORANDUM OF DECISION This matter is before the court on an objection to confirmation filed by one of these Chapter 13 debtors’ secured creditors, First Merit/First National Bank, fka Peoples Federal (First Merit). The narrow issue for determination is the proper rate of interest which First Merit is entitled to be paid as an admittedly fully secured creditor. There appears to be no dispute that...
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MEMORANDUM OF DECISION Before the court are briefs filed by the United States in each of the above adversary proceedings, on behalf of its agency the Internal Revenue Service (IRS), supporting its claimed interest in certain proceeds of a state court partition sale. The First National Bank of Shelby (FNB), one of the defendants, filed a response to each brief which essentially supports th...
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RULING ON MOTIONS FOR APPOINTMENT OF TRUSTEE Motions have been filed by the United States, on behalf of the Rural Utilities Ser *661 vice (“RUS”), Central Louisiana Electric Company, Inc. (“CLECO”) and Teche Electric Cooperative, Inc. (“TECHE”), requesting the Court to appoint a trustee pursuant to section 1104 of the Bankruptcy Code, 11 U.S.C. § 1104. Gulf States Utilities (“GSU”) has file...
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MEMORANDUM DECISION On September 26,1995, B. Ann Whittaker, James F. Whittaker, E. Douglas Whittaker, Catherine Cryan and Maxine Seavey (the “Movants”), filed a Motion Pursuant to Fed. R.Bankr.P. 9024 Seeking Nunc Pro Tunc Order Extending Deadline for Filing Complaint(s) Objecting to Discharge Under 11 U.S.C. Sections 523 and 727 (the “Motion”). I held a hearing on the Motion and then took the m...
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ORDER On consideration before the court is a motion for summary judgment filed by the plaintiff, Bruno Deodati; response to said motion, as well as, a counter-motion for summary judgment having been filed by the defendants, M.M. Winkler & Associates, Bill Morgan, and Okee McDonald; and the court having considered same hereby finds, orders, and adjudicates as follows, to-wit: I. ...
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MEMORANDUM OPINION The Court is confronted with motions for summary judgment filed by both plaintiffs in the above cases and by defendants. For the reasons that follow, both parties’ motions will be denied and the adversary proceedings dismissed. Facts A brief summary of the facts of these cases is as follows: 1. On 12/11/92, Samuel and James Jef-fries filed Chapter 11 petitions in Bank...
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OPINION On consideration before the court is a motion for summary judgment filed by the defendant, Washington County Economic Development District; response to said motion having been filed by the Chapter 7 trustee, Alex Gates; and the court having considered the motion, response, and memorandum briefs, hereby finds as follows, to-wit: I. The court has jurisdiction of the su...
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MEMORANDUM OPINION Piece Goods Shops Company, L.P., a North Carolina limited partnership which owns and operates a chain of retail stores specializing in fabrics, crafts, and related merchandise, and its general partner, Piece Goods Shops Corp., each filed voluntary chapter 11 petitions on April 19, 1993. The cases were administratively consolidated by order entered on May 12,1993. Piece ...
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OPINION On consideration before the court is a complaint filed by the plaintiff, Lance D. Whaley, against the defendant, Mary Ann Whaley; answer and affirmative defenses having been filed by said defendant; and the court having heard and considered same, hereby finds as follows, to-wit: I. The court has jurisdiction of the parties to and the subject matter of this proceeding pursuant to 2...
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OPINION On consideration before the court is a complaint for declaratory judgment filed by the plaintiff, APAC-Mississippi, Inc., against the defendant, Bobby Clardy, d/b/a Clardy Construction; answer and a counterclaim for actual, extraeontractual, and punitive damages having been filed by the defendant; all issues having been appropriately joined; and the court having heard and cons...
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OPINION On consideration before the court is the amended motion of the debtor’s attorney, Jim Waide, for the allowance of attorney’s fees and expenses, coupled with a motion for a determination that such attorney’s fees and expenses may be paid from the proceeds realized from the sale of the debtor’s stock certificates, which constitute intangibles upon which the judgment creditor, Georgia Mari...
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*2 DECISION I. Introduction William J. O’Brien (‘William”) filed his Chapter 7 petition on June 6, 1994. Stephen E. Shamban (“Trustee”) was appointed as trustee. William is married to Mary C. O’Brien (“Mary”), who is not a debtor. Mary is trustee and beneficiary of the M.C.O. Realty Trust (“MCO”). Plymouth Savings Bank (the “Bank”) is the plaintiff in the second adversary proceeding. This...
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DECISION REGARDING MOTION TO DISMISS I. Background Joseph P. Callanan, the debtor in this Chapter 13 case (the “Debtor”), filed this adversary proceeding against International Fidelity Insurance Company (the “Defendant”). His complaint is entitled Complaint to Avoid Lien as Preferential Transfers (the “Complaint”). The Defendant moved to dismiss arguing that the Debtor lacks standing to b...
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MEMORANDUM OPINION This matter came before the Court for trial on November 30,1995, on the Complaint of the Plaintiff, Pamela Collins, 1 f/k/a Pamela Florez, to Determine Dischargeability of Debt and For Money Damages. The Plaintiff is represented by Attorney Thomas J. Lester. The Defendant-Debtor, Thomas C. Florez, is represented by Attorney Raymond X. Henehan. BACKGROUND The Debtor ...
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OPINION On consideration before the court in the above captioned adversary proceeding is the issue of the assessment of attorney’s fees and expenses incurred by the plaintiff, Juanita C. Winchester, individually, and as executrix of the estate of Clarence E. Winchester, as a result of the willful violation of the automatic stay by the named defendants. The court has reviewed the fee r...
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190 B.R. 149 (1995) In re RAYTECH CORPORATION, Debtor. OFFICIAL COMMITTEE OF UNSECURED CREDITORS, Plaintiff, v. RAYTECH CORPORATION, Defendant. Bankruptcy No. 5-89-00293. Adv. No. 95-5139. United States Bankruptcy Court, D. Connecticut. December 8, 1995. *150 Robert A. White, Robert E. Kaelin, Murtha, Cullina, Richter and Pinney, Hartford, Connecticut, for Raytech Corporation. Michael Temin, Wolf...
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190 B.R. 796 (1995) In re ATLAS MACHINE AND IRON WORKS, INC., Alleged Debtor. Bankruptcy No. 91-11448-AB. United States Bankruptcy Court, E.D. Virginia, Alexandria Division. November 30, 1995. *797 *798 H. Jason Gold, Gold & Stanley, P.C., Alexandria, Virginia, for debtor. James F. Hibey, Verner, Liipfert, Bernhard, McPherson & Hand, McLean, Virginia. MEMORANDUM OPINION MARTIN V.B. BOSTE...
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MEMORANDUM OPINION On July 8, 1992, this Court entered an order authorizing the debtor, JKJ Chevrolet, Inc., to use Ford Motor Credit Corporations’s (“Ford Credit”) cash collateral to pay its employees for work performed prior to the sale of the debtor’s business on March 10, 1992. Ford Credit appealed the July 8th order to the United States District Court for the Eastern District of ...
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ORDER ON OBJECTION TO EXEMPTIONS IN THIS Chapter 7 ease Diane Jensen, Trustee of the above captioned Chapter 7 case, (“Trustee”) objected to the claims of exemption of Mary Jane Zesbaugh (“Debt- or”). The Objection interposed by the Trustee to the claims of exemption fall into four separate categories. They involve first, the personal property in general claimed as exempt; the equity in a Toyot...
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190 B.R. 964 (1995) In re Paul A. BILZERIAN, Debtor. SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. Paul A. BILZERIAN, Defendant. Bankruptcy No. 91-10466-8P7. Adv. No. 92-605. United States Bankruptcy Court, M.D. Florida, Tampa Division. December 29, 1995. *965 Catherine M. Shea, Washington, DC, for Plaintiff. Paul A. Bilzerian, Tampa, Florida, Pro Se. ORDER ON MOTION TO COMPEL TO ANSWER INTER...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THE MATTER under consideration involves the dischargeability, vel non, of a debt *956 owed by Carol A. Lawson (debtor) to North-star Guarantee, Ine. (Northstar) and Hemar Service Corporation of America (Hemar), the Defendants named in this adversary proceeding commenced by the Debtor. The immediate matters under consideration are two Motions for Summary J...
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*936 ORDER ON EMERGENCY MOTION FOR DETERMINATION OF APPLICATION OF § 362 STAY OR, IN THE ALTERNATIVE, FOR EXTENSION OF STAY THIS IS a Chapter 11 reorganization case and the matter under consideration is presented to this Court, ex parte, by Lykes Brothers Steamship Company, Inc., (Debtor). The Debtor in its motion seeks a determination of the application of § 362 stay, or in the alternative...
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ORDER ON MOTION FOR SUMMARY JUDGMENT ABC ELECTRIC SERVICES, INC. (Debtor) who sought relief under Chapter 11 of the Bankruptcy Code filed an adversary proceeding against Rondout Electric, Inc. (Rondout). In its three count Complaint the Debtor sought a determination of the validity, extent, and priority of the security interest of Rondout (Count I); an order subordinating the claim of Ron...
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ORDER ON MOTION FOR LEAVE TO AMEND This is a Chapter 7 liquidation case and the matter presently before the Court is a complaint filed by Alfred J. Romagnolo (Debtor) seeking a determination by this Court that his liability for income taxes for the years 1982 through and including 1985 is within the protection of the general discharge. The Debtor in his complaint named the United States of Americ...
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ORDER ON OBJECTION OF THE CLAIMS OF THE UNIVERSITY OF ALABAMA Among the several wholly owned subsidiaries of Hillsborough Holdings, Inc./Walter Industries (“HHC”), with possible exception, none has been involved in more serious and important litigations than Jim Walter Resources Inc. (“JWR”). Although the Joint Plan of Reorganization of HHC, its subsidiaries, and the Official Committees has been ...
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ORDER ON MOTION FOR REMAND THIS IS a confirmed Chapter 11 case and the matter under consideration is a Motion for Remand filed by Palmer Realty Group, Inc. (Palmer). The Motion is directed to a civil suit filed by Palmer in the Circuit Court for Pinellas County, Florida against Taylor Woodrow Communities, a Florida General Partnership (Taylor). Palmer in its suit claims damages it allegedly suffe...
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ORDER ON TRUSTEE’S OBJECTION TO EXEMPTION THIS CAUSE came on for hearing with due notice to all interested parties upon Objection to Claim of Exemption filed by Diane Jensen, Trustee (Trustee), who is in charge of the administration of the estate in the above-captioned Chapter 7 case. J. Norris Lee and his wife, Rhay E. Lee, (Debtors), claimed as exempt, under Fla.Stat. § 222.11, renewal commis...
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OPINION ON COMPLAINT FOR PERMANENT INJUNCTION At Montgomery, Alabama, on Thursday March 23, 1995, the above complaint came for hearing. All parties were offered an opportunity to present testimony and other evidentiary materials and extensive oral argument was heard. After careful consideration of the facts in the instant proceeding as well as the relevant law, the court finds that the debts in ...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DEBTOR’S MOTION TO DETERMINE VALUE OF COLLATERAL ALLEGEDLY SECURING CLAIMS OF OB/GYN SOLUTIONS, L.C., FT. BROOKE SAVINGS BANK, SUN BANK OF TAMPA BAY AND KIRBY BLANKENSHIP THIS IS a Chapter 7 case, originally commenced as a Chapter 11 ease but due to the inability of Dr. Richard R. Six (Debtor) to obtain confirmation, it was converted to a Chapter ...
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ORDER ON OBJECTION TO EXEMPTIONS IN THIS Chapter 7 liquidation case, Donna L. Ulino (Debtor) claimed as exempt certain personal properties including a 1989 Ford Mustang. Diane L. Jensen (Trustee), the Trustee in charge of the administration of the estate, timely challenged the Debtor’s claim of exemptions. The Trustee’s objection is twofold. First, the Trustee contends that the aggregate value of ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT ON COUNT III AND MOTION TO CHANGE VENUE IN THIS Chapter 7 case the matter under consideration is a Motion for Summary Judgment and Motion to Change Venue filed by W.H. Ford, as Trustee (W-H. Ford). The Complaint which originally consisted of four counts left one claim for consideration which is set forth in Count III. In this Count W.H. Ford sought a d...
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ORDER ON RENEWED MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, MOTION FOR ABSTENTION This is an involuntary case filed by Blazer Building, Inc., (“Blazer”) against Rookery *950 Bay Ltd. (“Debtor”) in which the Order For Relief has yet to be entered, notwithstanding the fact that the involuntary Petition was filed on May 18, 1995. The entry of an Order For Relief has been strongly resiste...
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ORDER ON DEBTOR’S OBJECTION TO ADMINISTRATIVE CLAIM OF LORAL (QUEEN’S HARBOR) THIS IS the next phase of litigation between Loral Librascope Pension Plan (Loral) and Bicoastal Corporation, d/b/a Simuflite, f/k/a The Singer Company (Debtor). The present matter under consideration in this confirmed Chapter 11 case is an Amended Application filed by Loral for administrative expense and an Obj...
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DECISION AND ORDER ON DEBTOR’S MOTIONS TO QUASH SUBPOENA Came on for consideration motions of the Lucille Blakely Trust (the “Trust”) to quash certain subpoenas issued in favor of the Department of Justice, Tax Division, on behalf of its “client,” the Internal Revenue Service. The subpoenas were issued to AA & T Escrow Company, First National Bank in Alam-agordo, NationsBank, and Texas Co...
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DECISION AND ORDER DISMISSING COMPLAINT This matter is before the court upon the defendant’s motion to dismiss the plaintiffs complaint under Fed.R.Civ.P. 12(b)(6). The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference *833entered in this district. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(H)— proceedings to determine, avoid, or recover fra...
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MEMORANDUM OPINION Plaintiff Mary E. Jones objects to the discharge of a judgment debt pursuant to 11 U.S.C. § 523(a)(6). 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 in favor of debtor/defendant Deborah Lee Graham (“debtor”). Debtor and her form...
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MEMORANDUM OPINION & ORDER This case is before the court on the motion of the debtor, Alfreda Epps Leavell, for a finding of contempt and imposition of sanctions against Littmans, Inc., (“Littmans”) and its counsel, W. Wayne Tiffany (“Tiffany”). After reviewing the evidence and arguments of counsel, we make the following determinations. FINDINGS OF FACT The debtor filed the inst...
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OPINION AND ORDER Before the court is a Motion for Reconsideration (docket No. 73) filed on August 22, 1995 by debtor Augusto Bobonis Lang requesting that the court set aside its ruling granting Carmen Belen Zequeira’s, the non-debtor spouse, Urgent Motion for Adequate Protection and Opposition to Sale of Property (docket No. 56) on August 10, 1995. Ms. Zequeira and debtor submitted a mem...
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MEMORANDUM DECISION: On October 2,1995, attorney John W. Gibson volunteered at the outset of a hearing on a motion to dismiss this chapter 13 case that, “we have had a hard time making contact with her [the debtor] and we have not been able to — we have not been able to find out enough information to defend the plan, so.” I inquired “On what basis did you then object to the motion to dism...
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ORDER Plaintiff, the Chapter 7 Trustee for the estate of James E. and Karin B. Combs (“Plaintiff-Trustee”) filed the above-styled adversary proceeding (the “Complaint”) to recover certain allegedly preferential and fraudulent transfers pursuant to 11 U.S.C. §§ 547, 548, and 550. It is before the Court on cross-motions for summary judgment filed by Defendant Westside Bank & Trust Company (‘Wests...
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ORDER RE MOTION TO DISMISS I. INTRODUCTION. Before the Court is a Motion to Dismiss filed by creditor Robert C. Russoli (“Russo-li”). Russoli claims that the Debtors, Snellen M. Johnson and Suzanne Johnson (“Debtors”), do not meet the eligibility standards to file Chapter 13, as set forth in Section 109(e), because their unsecured debts exceed the statutory maximum of $250,000. ...
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OPINION Confronting the court are legal issues concerning valuation under Federal Rule of Bankruptcy Procedure 3012 and temporary allowance under Federal Rule of Bankruptcy Procedure 3018. Motions to value the claim and to temporarily allow a claim have been filed by Phoenix Capital Corporation, (“Phoenix”), in conjunction with the presentation of separate plans of reorganization file...
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OPINION AND ORDER The complaint of Raymond Price, III, (“Price”) requests the return from the chapter eleven estate of certain sums held pursuant to an agreement of sale between the estate and Price. There appears to be no dispute as to the factual basis for this complaint. On February 19,1993, the Debtors entered into two (2) separate agreements with Price for the sale of real and personal...
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OPINION AND ORDER Pearl B. Serino t/a Serino’s Nurses Registry is in Chapter 13 bankruptcy having filed for same on February 4,1993. Objections have been filed to the bankruptcy plan alleging the Debtor has not arranged for the full payment of priority taxes pursuant to 11 U.S.C. § 1322(a)(2). The Debtor responds to the objection of the IRS by asserting that she was not responsible for the speci...
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MEMORANDUM OPINION PROCEDURAL HISTORY The Debtor and Maxine Slater dissolved their marriage in 1987. A judgment was thereafter entered against the Debtor requiring him to pay $24,508.84 in back child support and spousal maintenance. The Debtor filed for relief under Chapter 13 of the Bankruptcy Code and proposed a plan which would pay the full amount of the child support obli...
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OPINION /. Appellants, Mir Kazem Kashani and Habi-beh S. Kashani (“Debtors” or “Appellants”), appearing pro se, 2 appeal from an order entered March 30, 1994 by the Honorable John J. Hargrove, of the United States Bankruptcy Court for the Southern District of California, which denied the Appellants’ request to sue the Chapter 11 Trustee, Radmila A. Fulton (“Tr...
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OPINION In this case, a state taxing authority has challenged the jurisdiction of the bankruptcy court to abrogate the state’s sovereign immunity by rendering a money judgment against it. The agency made a demand upon an escrow company for payment of taxes owed by the debtor’s partner, and was paid approximately $69,000 from estate funds. The Chapter 7 1 trustee sued for re...
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OPINION This appeal arises from the granting of a motion for summary judgment declaring a federal court judgment to be nondischargeable. The debtor appeals. We REVERSE and REMAND. I. FACTS The debtor/appellant, John V. Silva (“Silva”) was an employee of Supreme Foods, Inc. (“Supreme Foods”), a Washington corporation, which distributed seafood products. Sometime in 1991, Sup...
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OPINION Discharged chapter 7 debtors 1 have appealed the bankruptcy court’s denial of their motion to reopen their bankruptcy case to avoid the lien of a creditor and to enjoin the creditor’s foreclosure action. WE AFFIRM. STATEMENT OF FACTS On August 19, 1993, Javier and Yolanda Cortez (the “debtors”) executed a promissory note in favor of American Wheel, Inc., doing...
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OPINION AND ORDER The application of Federal Rule of Bankruptcy Procedure 9011 has been seldom addressed by the Third Circuit. See In re Gioioso, 979 F.2d 956 (3rd Cir.1992); Landon v. Hunt, 977 F.2d 829 (3rd Cir.1992); Cinema Service Corp. v. Edbee Corp., 774 F.2d 584 (3rd Cir.1985). Not surprisingly, there is little instruction by the Third Circuit concerning the application of that rule to b...
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OPINION AND ORDER Under consideration in this Chapter 11 case is a Motion to Convert the case to Chapter 7, an Objection to Brizers’ and Ba-ilaras’ (hereinafter “Debtors”) amended plan filed by The First National Bank of Jermyn (hereinafter “FNBJ”) and FNBJ’s Motion for Relief from the Automatic Stay. An Objection to FNBJ’s Proof of Claim was filed by the Debtors. The pertinent facts are as fol...
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ORDER On October 26, 1994, John E. Oldner (debtor) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. Richard L. Ramsay, Esq., was appointed trustee. The debtor claims his residence and 9.7 acres of land as an exempt rural homestead pursuant to 11 U.S.C. § 522(b)(2) (1988), Ark.Code Ann. § 16-66-218 (Miehie Supp.1993), and Ark.Const. ar...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court for confirmation is the Chapter 13 Plan (“Plan”) of Penny Corino (“Debtor”) filed on March 31, 1995, and a motion by Binghamton Savings Bank (“BSB”) seeking abstention and dismissal of Debtor’s case pursuant to § 305(a) of the *285 Bankruptcy Code (11 U.S.C. §§ 101-1330) (“Code”). ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The adversary proceeding now before this Court was commenced by the filing of a complaint by Key Bank of New York (“Key Bank”) on May 8,1995, seeking a determination of the nondischargeability of a debt pursuant to § 523(a)(2), (4) and (6) of the Bankruptcy Code (11 U.S.C. §§ 101-1330) (“Code”). 1 On June 19, 1...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is an objection filed by Mark W. Swimelar, Esq., Chapter 13 Trustee (“Trustee”), to a request for attorney’s fees by Michelle C. Marans, Esq. (“Marans”) of the law firm of Bodow, Antonucci & Fintel, LLP (the “Firm”) in three separate cases filed pursuant to Chapter 13 of the Bankruptcy Code (11 ...
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DECISION ON ADMINISTRATIVE EXPENSE PRIORITY STATUS OF ENVIRONMENTAL CLEAN UP COSTS This Court is asked to determine whether environmental clean-up costs incurred post-petition under the New Jersey Environmental Cleanup Recovery Act (“ECRA”) 1 , N.J.Stat.Ann. § 13:lK-6 to -35 (West 1991), resulting from debtor’s pre-petition actions are entitled to administ...
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MEMORANDUM Counsel for the debtor in possession, Ms. Marion Pruss, purchased debtor’s personal residence after a secured creditor obtained relief from the automatic stay and foreclosed. Before the court is the Motion for Authorization to Permit Ms. Pruss to Enter Into Trust Agreement and for Authority to Continue as Attorney for Debtor in Possession filed by James A. Sauer, individually, and ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court makes the following findings of fact and conclusions of law with respect to the trial of the claims and- causes of action of Third Party Plaintiff, Grady H. Vaughn, III, (“Grady”) against the Third Party Defendants Akin, Gump, Hauer & Feld, f/k/a Akin, Gump, Strauss, Hauer & Feld, a Texas general partnership; Akin, Gump, Hauer & Feld, ...
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ORDER On January 21, 1994, Charles and Sylvia Evans (debtors) filed a voluntary petition for relief under the provisions of chapter 7 of the United States Bankruptcy Code. Walter M. Dickinson, Esq., was appointed trustee. The debtors claimed certain real property as an exempt rural homestead pursuant to 11 U.S.C. § 522(b)(2) (1988), Ark.Code Ann. § 16-66-218 (Michie Supp.1993), and Ark. Const, ...
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ORDER ALLOWING MOTION TO DISMISS WITHOUT PREJUDICE The matter before the court is the motion filed by the chapter 7 debtor/defendant, Lora Measley Whitley Herring, to dismiss this *319 adversary proceeding pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.BankR.P. 7012(b)), for failure to state a claim upon which relief can be granted. Specifically, the debtor contends ...
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MEMORANDUM OPINION Donna Marie Brown (“Donna” or “Debt- or”) claims a homestead exemption under Texas law in her property at 1411 Harris Lane. Her ex-husband Doran Lee Brown (“Doran” or “Brown”) has objected to her claim of exemption. The Court held a hearing on this matter on August 23, 1995. The following are the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 70...
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MEMORANDUM OPINION The Trustee has filed an Application for Final Compensation in this case seeking ap *648 proval of commissions in the amount of $4,995.19 and reimbursement for expenses in the amount of $40.20. There are no issues concerning the expenses and they shall be approved as requested. As to the commissions, the Trustee has filed a memorandum in support of his Application for C...
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MEMORANDUM OPINION The Court has before it the complaint of Daniel E. Schachter (“Plaintiff’) against the debtor, David G. Fall (“Defendant”), seeking a determination that a debt owed from the Defendant to the Plaintiff be excepted from discharge under sections 523(a)(6) and (9) of the Bankruptcy Code. For the reasons set out below, the Court finds that the debt is not excepted from d...
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MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. ISSUE The issue raised by the defendant’s motion for summary judgment is a Chapter 7 trustee’s entitlement to funds the debtor, while acting as a self-insurer, deposited as security for its obligations with the defendant, the New York State Workers’ Compensation Board (“The Board”). The plaintiff-trustee *5concedes that ther...
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ORDER WHEREAS, “Sears” (believed to be Sears, Roebuck & Company) has caused a “Reaffirmation Agreement/Secured” (the “Agreement”) to be filed in this case as Docket No. 5-1; and WHEREAS, the Agreement contains a representation by the debtors that “Debtor wishes to either retain the property securing the account balance, to settle creditor’s claims of nondischargeability unde...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND SCHEDULING PRELIMINARY PRETRIAL AND DISCOVERY CONFERENCE These adversary proceedings came on for consideration of the motion for summary *926judgment filed by the plaintiffs. Each proceeding is a proceeding to deny a discharge to the respective Chapter 7 debtor. Both proceedings came on before the court for preliminary pretrial and scheduling ...
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MEMORANDUM OF DECISION Debtor John Pavich brought this motion for summary judgment in this adversary proceeding to determine the order and priority of liens and to determine the distribution of the remaining funds on hand from the sale of the Debtor’s residence. Plaintiffs Leslie and Elaine Bernstein joined in this motion. The Internal Revenue Service (“IRS”) filed a separate motion for s...
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MEMORANDUM I. INTRODUCTION The matter before the Court for determination is the Complaint filed by the Plaintiff, Drake Capital Securities, Inc. (“Drake”), against the debtor, Owen G. Larkin (“Lar-kin”). Through its complaint, Drake seeks a determination that a debt owed to it by Larkin in the sum of $130,272.00 is nondis-ehargeable pursuant to 11 U.S.C. § 523(a)(2)(A) or (a)(6). Lar...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SONEET R. KA-PILA’S, TRUSTEE IN BANKRUPTCY FOR TAREK HALABI AIKtA TITO HALABI, MOTION FOR SUMMARY JUDGMENT THIS MATTER came before the Court pursuant to Soneet R. Kapila’s, Trustee in Bankruptcy for Tarek Halabi a/k/a Tito Hala-bi (“Trustee”) Motion for Summary Judgment (“Motion”) as to Defendant Bernard Berman (“Berman”) and Defendant Maria ...
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MEMORANDUM OPINION1 BACKGROUND On July 27, 1994, David R. Ransom, Jr. d/b/a D & R Press (“Debtor”) filed a voluntary petition for relief pursuant to Chapter 11 of the Bankruptcy Code. D & R Press is a small commercial printing company in Chicago, Illinois. The Debtor is current with the monthly operating reports and with the quarterly fees payable to the United States Trustee. Since the bankruptc...
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OPINION ON MOTION FOR SUMMARY JUDGMENT This adversary proceeding involves the execution of a Builder’s and Mechanic’s Lien Promissory Note, a Builder’s and Mechanic’s Lien Contract and Deed of Trust, and a Proposal and Contract (collectively, the “Contract”). Under the terms of the Contract, Lucille Rebeetor (“Plaintiff’) entered into an agreement with Ramon Korrodi which provided tha...
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MEMORANDUM-DECISION AND ORDER The instant contested matter is before the court on the motion by Capital Communications Federal Credit Union (“Capital”) for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) and (2) (11 U.S.C. §§ 101-1330 hereinafter the “Code”). This matter is within the court’s core jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(A), (G). FACTS On May 3, 1995 ...
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Plaintiff, Barbara Balaber-Strauss as Trustee of the debtor’s estate (“Trustee”), commenced this adversary proceeding seeking specific performance and other relief against defendant Joseph Markowitz (“Defendant”), based upon Defendant’s breach of his contractual obligation to purchase real property arising from his winning bid at a trustee’s auction on November 17,1994. Defendant asserted ...
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ORDER DISMISSING CASE OVER OBJECTION On February 15, 1995, Curtis C. Reding, Trustee in this pending Bankruptcy Case, filed a Motion to Dismiss the case. At that time, the Court ordered the case dismissed on and after February 25, 1995 unless debtors filed an objection to dismissal prior to that time. On February 23, 1995, debtors *214 filed a pleading entitled “Objections to the Order of D...
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MEMORANDUM OPINION Trial on plaintiffs complaint to deny debt- or’s discharge in bankruptcy pursuant to 11 U.S.C. § 727(a)(4)(A) was held in Alexandria, Virginia, on June 21 and 22, 1995. At the conclusion of trial the court ruled from the bench that debtor’s discharge would be denied. This opinion supplements the court’s bench ruling. Facts 1 Debtor defendant a...
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MEMORANDUM OPINION This case is before the court on the objection by creditor Contractor’s Paving Company to an exemption claimed by the debtor. *226For the reasons stated in this opinion, the objection will be sustained and the exemption disallowed. FINDINGS OF FACT In February 1992 debtor purchased real property located in Virginia Beach, Virginia. Debtor’s wife was not a party to the purchase c...
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MEMORANDUM OPINION Hearing was held May 17, 1995, on the motion of Patricia McNallen Hagan, as attorney-in-fact for Sallie Lou McNallen (“Mrs. McNallen”) and Managing Trustee of the G.B. and Sallie McNallen Trust, to reconvert this case to chapter 7 pursuant to 11 U.S.C. § 1112(b), and upon the motion of the chapter 7 trustee to approve the sale of certain assets and compromise certain claims...
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MEMORANDUM OPINION This matter is before the court on the debtors’ motion for reconsideration of an order denying their motion to avoid a security interest in a 1986 Ford truck. The only dispute is whether the truck is exempt as a tool of the husband’s trade. Procedural History The debtors filed a voluntary petition under chapter 7 of the Bankruptcy Code in this court on Nov...
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MEMORANDUM OPINION This matter is before the court on the trustee’s objection to the debtors’ claimed exemption — or, more precisely, to the increase in the amount of the debtors’ claimed exemption — in certain shares of stock in a closely-held business. A hearing was held on June 15, 1995, at which time the court took the matter under advisement. This opinion constitutes the court’s findings...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon a Motion for Summary Judgment (Doc. No. 25) and supporting Memorandum of Law filed by Plaintiff and a Motion for Summary Judgment (Doc. No. 31) and Memorandum of Law in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants’ Motion for Summary Judgment (Doe. No. 30) filed by Defendants. FI...
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ORDER AND OPINION This matter is before the Court on the Government’s motion to reconsider the earlier decision of the Court with respect to the claim for internal revenue taxes, in which this Court held that Amtron’s patents, which the Trustee had recovered through a fraudulent conveyance action, were not subject to a valid prepetition federal tax lien. The basis for the motion is th...
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MEMORANDUM I. INTRODUCTION The issue before the Court is how the Chapter 13 Trustee should handle plan disbursements in an active, confirmed ease that are returned to the Chapter 13 Trustee due to an incorrect address and the creditor cannot be located. For the reasons cited herein, the Court finds that in an active, confirmed Chapter 13 case, the Trustee may seek to disallow a previously all...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The within contested matter is before the Court by way of a motion filed by Niagara Mohawk Power Corporation (“NIMO”) requesting the escrow of alleged future contract overpayments being made to Megan-Racine Associates, Inc. (“Debtor”). NIMO’s motion, filed pursuant to Bankruptcy Code §§ 363(e) and 105(a) (11 U.S.C. §§ 101...
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MEMORANDUM AND ORDER By Motion filed October 30, 1995, the Debtor asks the court to reconsider its Order entered October 25, 1995, sustaining the trustee’s objection to the Debtor’s claim of exemptions. *515The Debtor filed a Petition under Chapter 7 on May 17, 1995, and pursuant to North Dakota Century Code § 28-22-02(7) claimed an absolute homestead exemption in ten city lots, to wit: Lots 1 t...
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ORDER At Butte in said District this 29th day of December, 1995. In this adversary proceeding, the Plaintiffs/Debtors 1 (“Knopfs”) challenge the Proof of Claim filed by the Defendant United States of America, Internal Revenue Service (“IRS”). In the complaint, the Knopfs’ “First Claim for Relief’ seeks a determination that the IRS failed to credit Knopfs’ tax liabilities f...
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ORDER DENYING RENEWED MOTION FOR STAY OF CONTESTED MATTER This case came on for consideration on the Renewed Motion for Stay of Contested Matter (the “Motion”) (Doc. No. 298), filed by the United States of America (the “Service”). The Service is seeking an indefinite stay of all hearings and decisions relating to a contested matter concerning a claim filed by the Service in this Chapt...
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REASONS FOR DECISION ON MOTION FOR STAY AND ADDITIONAL RELIEF AND REPORT AND RECOMMENDATION WITH PROPOSED ORDER ON TRUSTEE’S MOTION FOR SANCTIONS AND CONTEMPT This matter came on for a hearing on July 21, 1995, on the Trustee’s Motion for Sanctions and Civil Contempt. Prior to and at the hearing, Debtor sought other relief, including a stay of further proceedings. This is a Core Proceedin...
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MEMORANDUM OF DECISION This matter came before the Court on Joseph Y. O’Donnell’s (“Trustee”) complaint against Eliot Chertok (“Defendant”) to compel turnover of property pursuant to 11 U.S.C. § 542. Both parties moved for summary judgment. The issue is whether Debt- or owned the property, a 1992 Buick Riviera, at the time of the filing of the bankruptcy petition. I. FINDINGS OF FACT The case w...
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FINDINGS OF FACT, CONCLUSIONS OF LAW and MEMORANDUM DECISION A Motion to Dismiss was filed by Metropolitan Life Insurance Company (“Met-Life”). Hearings were held on January 11 and 24, 1995. Briefs were filed, evidence *294 taken, and arguments made. MetLife was represented by Gary G. Keltner; the debtor was represented by Eric Slocum Sparks. After consideration of...
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ORDER DENYING SECOND MORTGAGEE’S MOTION TO DISMISS CASE OR, ALTERNATIVELY, FOR RELIEF FROM THE AUTOMATIC STAY THIS CAUSE came before the Court on June 12, 1995, upon the Second Mortgagee’s Motion to Dismiss Case Or, Alternatively, For Relief From the Automatic Stay (“the Motion”). The Court, having considered the arguments of counsel, having reviewed the post-hearing submissions by the respectiv...
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Order Denying Amendment to Schedules and Motion to Modify and Order Sustaining Objection to Amendment to Schedules and Motion to Modify Filed by Wayne-Dalton Corp. This matter is before the Court on an Amendment to Schedules and Motion to *342 Modify filed by the Debtor on April 10, 1995 and on an Objection to Amendment to Schedules and Motion to Modify filed by Wayne-Dalton Corp. on Ap...
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MEMORANDUM OPINION ON THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This matter came before the Court on a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment filed by Defendant-Debtor on June 19, 1995. After notice, a hearing was held on July 24, 1995. Max C. Pope, Jr., the attorney for the Defendant-Debtor, and John A. McBrayer, the attorney for the Plaintiff, appeared. The ...
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MEMORANDUM OPINION This matter came before the Court for trial on the Complaint filed by Mr. James Ronald Houston. The plaintiff, Mr. James Ronald Houston; the defendant, Ms. Vickie Houston Capps; the attorney for the plaintiff, Mr. Robert L. Austin; and the attorney for the defendant, Mr. Gary W. Weston, appeared. The matter was submitted on the oral stipulation of facts made in open cou...
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ORDER DENYING MOTION FOR RELIEF FROM AUTOMATIC STAY (Filed by United Companies Financial Corporation) This matter came before the Court on a Motion for Relief from the Automatic Stay filed by United Companies Financial Corporation on February 6, 1995. A preliminary hearing was held on February 22, 1995 at which the Court considered United’s motion and its objection to confirmation of...
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MEMORANDUM OPINION This matter came before the Court for trial on the Complaint to Determine Dis-chargeability filed by Benny Joe Montgomery. Appearing were Mr. Dennis W. Jacobs, the attorney for the plaintiff; Mr. Richard L. Jones, the attorney for the defendant; Mr. Robert Herring and Mr. Benny Montgomery. The matter was submitted on the testimony offered, the exhibits admitted into evidence,...
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SUBSTITUTED ORDER On November 12, 1992, Guy Hamilton Jones, Jr. (debtor) filed a voluntary petition for relief under the provisions of chapter 7 of the United States Bankruptcy Code. The debtor claimed a residence and ten acres (Meadowlake property) as an exempt home *505 stead pursuant to 11 U.S.C. § 522(b)(2)(A) (1988) and the Arkansas Constitution. Ark. Const. Art. 9, § 3. On April 3, ...
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MEMORANDUM DECISION This is an action by several Warner Springs Ranch Co-Owners (“Co-Owners”) for payment of attorney fees under 11 U.S.C. § 503(b)(3) and (4). This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157(b)(1) and General Order No.'312-D of the United States District Court, Southern District of California. This is a core proceeding pursuant to 28 U.S.C. ...
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AMENDED MEMORANDUM DECISION INTRODUCTION The United States District Court remanded this preference action for reconsideration of whether payments by the debtor totaling $157,531.98, within 90 days of bankruptcy, were made according to ordinary business terms. The district court ruled that this requires a determination of the industry in which Milwaukee Cheese Wisconsin was engaged, a...
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MEMORANDUM OPINION AND ORDER THESE MATTERS come before the Court under Fed.R.Bankr.P. 4001(d) for consideration of unopposed motions by Inca Group, Ltd. and Gallegos Research Group, Corporation (hereinafter referred to as Inca, Gallegos or Debtor(s)) to approve three agreements relating to relief from automatic stay, use of cash collateral and adequate protection (hereinafter Agreements)....
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MEMORANDUM OPINION This matter is before the court on the debtor-defendant’s motion for summary judgment filed August 15, 1995. Argument was heard on August 29, 1995, at which time the court took the matter under advisement. Because the debtor has not established that he is entitled to judgment as a matter of law, the motion for summary judgment will be denied. This is an action by t...
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DECISION This matter is before the court following trial of the issues raised by plaintiffs complaint as to the defendant, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. The complaint has been filed pursuant to § 542 of the United States Bankruptcy Code. By it, the trustee seeks the sum of $125,000.00 that Carlton, Fields held in its trust account on and after the date of the p...
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MEMORANDUM-DECISION AND ORDER This matter is before the Court by way of cross-motion dated June 10, 1994 by creditor Norton Company (hereinafter “Norton”) seeking, inter alia, dismissal of the case of C-TC 9th Avenue Partnership (hereinafter “Debtor”) pursuant to section 1112(b) of the Bankruptcy Code (11 U.S.C. §§ 101-1330 hereinafter the “Code”). Simultaneously pending are tw...
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MEMORANDUM REGARDING OBJECTIONS TO IRS CLAIM AND CONFIRMATION OF CHAPTER 13 PLAN The debtors’ objections to the claim of the Internal Revenue Service (IRS) and their Chapter 13 plan duly came before the court for hearing on September 20, 1996. Robert Crowther appeared on behalf of the debtors. Robert Branman appeared for the IRS. The parties submitted briefs in support of their respective posit...
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MEMORANDUM DECISION This contested matter is before the court on the Chapter 11 trustee’s objection to the amended proof of claim and the “Motion to Allow Informal Proof of Claim and Amendment to Proof of Claim and In the Alternative to Enlarge Time to File Proof of Claim” (motion) filed by Emerald Builders, Inc. I.FINDINGS OF FACT 1 1. Emerald Builders, Inc. (Emerald) i...
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ORDER The cause before the Court is Defendants’ motion seeking an order making permanent a previous order of the Court sealing the complaint and certain other papers in this adversary proceeding. The Vindicator Printing Company, publisher of a newspaper of general circulation in this area, moved to intervene in the public interest to oppose the permanent sealing of the documents, which mo...
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MEMORANDUM OF DECISION ON MOTION FOR POSTPETITION INTEREST BASED ON ASSERTED RIGHT OF SETOFF This case is before the Court on the motion of creditor Citizens National Bank to receive postpetition interest based on an asserted right of setoff. The debtors have objected to this request. Citizens National Bank appears by counsel Terry D. Criss. The debtors appear by counsel William E. Metcal...
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MEMORANDUM DECISION Preliminary Statement The Debtors, RICHARD HARRY JACKSON and LISA MARIE JACKSON, and the Trustee, STEVEN SINGER, have requested that this Court determine whether an objection to an exemption must be filed when the Debtor’s market value of the property claimed exempt is equal to the amount properly claimed as exempt by the Debtors under applicable state or fede...
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MEMORANDUM DECISION Preliminary Statement This matter comes before this Court on an “Expedited Motion for Reconsideration Re: Court Order of May 22, 1995,” concerning the trustee’s sale of certain real property located at 2713 West Gila Lane, Chandler, Arizona, filed by WILLIAM J. THOMAS AND STEPHANNA F. THOMAS (the “Debtors”), and the “Motion for Relief from the Automatic Stay a...
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ORDER THIS MATTER comes before the Court upon the Motion of Summatyme Corporation, a N.C. corporation, (“Summatyme”), for an Order modifying the 11 U.S.C. § 3621 stay in this case to allow the completion of the foreclosure proceeding before the Master-in-Equity for Charleston County, and to allow the entry of Judgment of foreclosure and sale of the Debtor’s real property. With the consent of the ...
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*383 ORDER DENYING MOTION TO REOPEN CASE THIS MATTER came before the Court on the motion of Richard J. Paul (the “Debtor”) to reopen his case. The Motion to Reopen Case was filed on September 20, 1995. On October 5, 1995, NationsBank, National Association (Carolinas)’s (“NationsBank”) filed its objection to the Debtor’s Motion to Reopen Case. Findings of Facts 1 1. On or about Dec...
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ORDER THIS MATTER comes before the Court for trial upon the Complaint, as amended, filed by the Plaintiff, W. Ryan Hovis, the Chapter 7 Trustee for the Debtor (“Trustee”) asserting twelve causes of actions against the various defendants. The Trustee seeks recovery of allegedly preferential payments from Defendant Powers Construction Company, Inc. (hereinafter “Powers Construction”) in the...
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ORDER THIS MATTER comes before the Court upon a Motion to Dismiss the Involuntary Petition, to Abstain and/or, for Relief from the Automatic Stay, and to Award Attorneys’ Fees, Costs and Damages (“Motion”) filed on August 31, 1995 by the Alleged Debtor, Gills Creek Parkway Associates, L.P., a South Carolina Limited Partnership (“Gills Creek”) in response to the Involuntary Petition of And...
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ORDER THIS MATTER came before the Court upon the Complaint of the Plaintiff, Laura T. Scott, seeking an Order declaring that the obligations owed by Defendant/Debtor should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(5) 1 and § 523(a)(15). 2 Based upon the evidence and testimony presented, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FAC...
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194 B.R. 53 (1995) In re James I. WARD, Jr., Debtor. ESTATE OF Madeleine SAMSON, By and Through its Personal Representative, the Reverend Joseph MURPHY, for the benefit of the Estate's residuary beneficiaries, The Extension Society; St. Jude's Hospital for Children; Little Sisters of the Poor; Xavier Association for the Blind; Graymore Friars; Sacred *54 Heart Missions; Association of the Blind a...
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ORDER THIS MATTER came before the Court pursuant to the Motion of SC Hyatt Corporation and Hyatt Corporation (“Hyatt”) to Dismiss the Complaint of Plaintiff Dunes Hotel Associates, or, in the Alternative, to Stay the Second Claim and Compel Its Arbitration (“Hyatt Motion”) and the Motion for Partial Summary Judgment against the Defendants with Respect to the First Claim for Relief of the ...
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ORDER THIS MATTER is before the Court upon (a) the Objection filed on April 13, 1995 by SC Hyatt Corporation (“Hyatt” or “SC Hyatt”) to Wolf Block Schorr & Solis-Cohen’s (‘Wolf Block”) proof of claim which was filed on March 20, 1995 in the amount of $2,139.57 (the “Objection”) and (b) the Debt- or’s Motion for Temporary Allowance of Claim Asserted by Wolf Block filed on August 28, 1995 (...
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MEMORANDUM OPINION Upon confirmation hearing of the within Chapter 13 case, the Court, having consid*139ered the Plan and the objections filed thereto, stated from the bench the reasons therefor and directed Trustee to prepare and submit to the Court a confirmation order, which confirmed the Plan subject to the resolution of the Internal Revenue Service’s (“IRS”) Objection and a resolution of the ...
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MEMORANDUM OPINION This adversary proceeding involves the priority of a mechanic’s Hen filed by D.M. *732Ward Construction Company, Inc. (‘Ward”). Plaintiff Exec Tech Partners, debtor in this Chapter 11 case, owns two office buildings (“Tech Buildings A and B”) in Kansas City, Missouri. Ward holds a validly filed and duly perfected mechanics’ lien on Tech Buildings A and B. Defendants Boatmen’s...
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MEMORANDUM OPINION On 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. Simultaneously, with the filing of the bankruptcy petition, the debtor ceased its operations and began the process of self-liquidation. On April 30, 1992, Jones filed a complaint against Central States Southe...
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MEMORANDUM OPINION The matter before the court is a complaint to interplead funds which are subject to competing claims of entitlement between Sable, Makoroff & Gusky, P.C., as counsel for Second Pennsylvania Real Estate Corporation, and First Pennsylvania Funding Company, Inc. The funds in the amount of $400,000 have been paid into the court registry by Papereraft Corporation pursuant to a Set...
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*194ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS Dennis L. Farr has petitioned this court for a writ of habeas corpus, seeking release from the custody of the Dane County Wisconsin Sheriff for an appearance before this court or a United States District Court on or before 9:00 a.m. July 12, 1995. The request is denied and the petition is dismissed. As a preliminary matter, Farr has filed hi...
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ORDER GRANTING MOTION TO ABSTAIN The matter before the court in this adversary proceeding is the motion to dismiss or abstain filed by the defendant, the United States of America, Internal Revenue Service (IRS). A hearing was held on December 13, 1995, in Raleigh, North Carolina. The motion to dismiss will be denied and the motion to abstain will be granted. JURISDICTION This bankruptcy cou...
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BACKGROUND On December 20, 1993, the Debtor, Nancy Harris, now Nancy Hamlin (the “Debtor”), filed a petition initiating a Chapter 7 case. On October 17,1994 her trustee (the “Trustee”) commenced an adversary proceeding (the “Avoidance Proceeding”) against the Debtor, Joanne C. Chwieeko (“Chwieeko”), Henry Hamlin (“Hamlin”), the Debtor’s husband as of July 2,1994, and Margaret Furby, the De...
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NDEP, the debtor plaintiff, referred to in these proceedings as Prospect, has sued Environ Corp., Judith Rosenthal, and Drinker Biddle & Reath. Prospect’s amended complaint alleges a violation of the automatic stay provisions of Section '362(a) of Title 11 United States Code and seeks avoidance of a post-petition transfer under Section 549 of the Code. *712 The complaint has a thi...
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ORDER SUSTAINING, IN PART, OBJECTION TO EXEMPTIONS THIS CAUSE came before the Court upon the trial on the merits of the trustee’s Objection to Exemptions, filed on January 24, 1995. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. This is a “core proceeding” within the meaning of 28 U.S.C. § 157(b) as exemplified by 28 U.S.CÍ § 157(b)(2)(B). The debtors fil...
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MEMORANDUM OPINION AND ORDER Before the Court is Debtors’ Objection to Claim of Farmer’s Home Administration (“FmHA”) to determine the value of certain real estate, chattels, livestock and equipment and to conclude the secured status of the FmHA claim. For the reasons hereinafter stated, the Court determines the value of the Debtors’ real property to be $83,750.00 and the value of the personal pro...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW At the heart of this adversary proceeding is the relationship between the parties and a stolen two-ton flatbed truck. Both the plaintiff and the debtors became involved with this truck, to their mutual sorrow, as it made its way from Kentucky to Wisconsin and back again. The debtors briefly possessed, and believed they owned...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW Presently before the Court is Dairy State Bank’s motion to clarify priority of security interests, which has been objected to by Consolidated Farm Service Agency (“CFSA”). 1 The motion is the result of a dispute over the proceeds of an auction of the debtors’ farm equipment which was held in December of 1994. Dair...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW As will be explained in further detail in a moment, an unfortunate thing happened in the main case of these debtors/defendants. Quite simply, the Court made a mistake, and the question is whether the Court can, or should, correct its mistake. Because this case and the case of Steve Boshardy, Jr. and Debra L. Boshardy 1...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial on the merits of the complaint to determine dischargeability. The debtor reopened his bankruptcy case to file this adversary proceeding which requests that the Court find a debt be declared discharged. In July 1993, the creditor Jerry Langfitt (“Langfitt”) obtained a judgment against the debtor in the amount...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court by virtue of an Order dated October 6, 1995, shortening time for an expedited hearing on *2 the motion of Mellon Bank, N.A., as Trustee for First Plaza Group Trust (“First Plaza”), to direct the Office of the United States Trustee (“UST”) to appoint First Plaza to the Offici...
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DECISION DENYING MOTION TO VACATE FORECLOSURE SALE The Debtor moved for an order declaring a foreclosure sale of the Debtor’s house “null and void ab initio”, and for sanctions including counsel fees and punitive damages against the creditor and its counsel for alleged violation of the automatic stay. The secured creditor, First Nationwide Bank (“FNB”), opposed the Debtor’s motion and cro...
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MEMORANDUM-OPINION This matter comes before this Court on the Objection of Creditor Mary Bush (“Creditor”) to the homestead exemption claimed by the Debtors, Harry and Elaine Bush (“the Bushes”). Creditor has objected to the Bushes’ claimed homestead exemption on the basis that the Bushes’ debt owed to her arose prior to the purchase of the Bushes’ homestead. In making this objection,...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed on June 26, 1995, by Constance A Via-nese (C. Vianese) seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”), incorporated by reference in Rule 7056 of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bankr.P.”), in the adversary...
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MEMORANDUM OPINION Hearing was held May 22, 1995, on the motion of the County of Chesterfield, Virginia, for sanctions based upon debtor’s alleged bad faith filing of this bankruptcy case. The court took the matter under advisement. After considering counsel’s argument, the material submitted by counsel, and the circumstances surrounding the filing of the petition, the court finds tha...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW: ORDER OF CONTEMPT THIS MATTER comes before the Court on the Motion of Aspen Limousine Service for an Order to Show Cause Why Colorado Mountain Express Should Not Be Held in Contempt of Court filed September 25, 1995. The Court, having reviewed the file, conduct *336 ed a hearing on December 6,1995, and being otherwise duly advised in t...
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ORDER This matter is before the court on a Motion to Dismiss or Convert filed by Franklin Federal Bancorp, FSB (“movant”). Movant seeks a dismissal or conversion of debtor’s case on the ground that he is ineligible to be a debtor under Chapter 13 because his unsecured debt exceeds the $250,000 limit of 11 U.S.C. § 109(e). This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) & (L). The ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This adversary proceeding was commenced upon the complaint of Dominick D’Agata (“Plaintiff’), filed on July 26, 1993, against Michael L. Hogan, d/b/a Hogan Contracting and Remodeling, d/b/a Gold Star Sports (“Debtor”). Plaintiff seeks a determination of the dischargeability of a debt pursuant to §§ 523(a)(4) and (a)(6) of the B...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This adversary proceeding was commenced upon the complaint of Giarrusso Building Supplies, Inc. (“Plaintiff’), filed on July 26, 1993, against Michael L. Hogan, d/b/a Hogan Contracting and Remodeling, d/b/a Gold Star Sports (“Debtor”). In its complaint, Plaintiff objected to the discharge of the Debtor pursuant to § 727(a...
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195 B.R. 129 (1995) In re DAK INDUSTRIES INCORPORATED, a California corporation, Debtor. DAK INDUSTRIES, INCORPORATED, a California corporation, Plaintiff, v. DOT-LINE TRANSPORTATION, a California corporation, Defendant. Bankruptcy No. LA 92-33128 SB. Adv. Nos. LA 92-03826 SB, LA 92-03099 SB. United States Bankruptcy Court, C.D. California. August 17, 1995. *130 Jay D. Fullman, Costa Mesa, CA, fo...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court considers herein the objection filed by Plaza Health Care Center (“Plaza”) on June 22, 1995, to confirmation of the Chapter 13 plan of Marcia E. Cornelius (“Debtor”).filed on March 13, 1995, and subsequently modified on or about June 8, 1995. An evidentiary hearing was held on August 31,1995, in Utica, New York....
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ORDER DENYING AMENDED MOTION TO QUASH SUBPOENA DUCES TECUM Before the Court is an Amended Motion to Quash Subpoena Duces Tecum (“Motion”) filed by J. Robert Dobbs, Jr. (“Dobbs”) and John F. Berry (“Berry”) on August 30,1995. The original Motion to Quash Subpoena Duces Tecum was filed on August 17, 1995 by Dobbs and was amended to add Berry as a movant. Dobbs and Berry are attorneys owning...
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MEMORANDUM This matter came before the Court on March 7, 1995, on a motion by Daikon Shield Claimant Irene Germany, who appears pro se, 1 to vacate an arbitrator’s decision. For *527 the reasons which follow, Movant’s motion will be denied. I. Movant is a Daikon Shield claimant who rejected her Option 3 offer and proceeded to arbitration ...
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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. I. Respondents are married to Daikon Shield claimants Jean Fleming and Teresa Pettina-to, each of whom sett...
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MEMORANDUM This matter is before the Court on Daikon Shield Claimant Gwendolyn Smith’s (“Mov-ant”) Motion for Leave to File a Late Claim. For the reasons which follow, the motion will be denied. I. Movant had an IUD inserted in 1973. Until 1994, Movant alleges that she had always been healthy, and had no reason to perceive any health risk because she was always able to locate the string on her ...
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MEMORANDUM This matter is before the Court on Mov-ants’ motion to reinstate their Daikon Shield Claims. For the reasons which follow, the motion will be denied. I. Movants are Daikon Shield Claimants whose claims were disallowed on the basis of fraud or other wrongdoing. Specifically, the Trust disallowed these claims after a determination that they were “fictitious, in that the named cla...
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MEMORANDUM Daikon Shield Claimant Sharon Allen (“Movant”), who appeared pro se before the Court on May 12,1995,1 seeks relief from the Daikon Shield Claimant Trust’s (“Trust”) final June 30, 1994, deadline to file a Daikon Shield claim. For the reasons which follow, her request will be denied. I. In mid-April, 1994, the Trust published, in sixty-eight newspapers worldwide,2 a one-day quarter-pag...
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MEMORANDUM Daikon Shield Claimants Eleanor and Norman Warren and Kelly Luscombe separately seek relief from the Dalkon Shield Claimant Trust’s (“Trust”) final June 30,1994, deadline to file a Daikon Shield claim. For the reasons which follow, their requests will be denied. I. Faced with the need to wind up its affairs, the Trust established a final deadline of June 80, 1994, to file a Daikon Sh...
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MEMORANDUM This matter is before the Court on the Daikon Shield Claimants Trust’s (“Trust”) motion to interpret the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Robins”) (“Plan”), the related documents under which the Robins Bankruptcy is being managed and Amended Administrative Order Number One (“Administrative Order”). This Court retains the exclusi...
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MEMORANDUM The Daikon Shield Claimants Trust (“Trust”) moves the Court for an Order enforcing the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”) (“Robins”) against Daikon Shield Claimants Judith and Samuel Felicia and their counsel, Michael Pretl and Robert Erwin (collectively, “Respondents”). This Court, which retains the exclusive jurisdiction to address...
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MEMORANDUM This matter is before the Court on the motion of Maureen Farrell (“Movant”), who appears pro se, to “Release Obtain and Submit Evidence.” For the reasons which follow, the motion will be denied. I. Movant is a Daikon Shield Claimant who has rejected her Option 3 offer of compensation, electing to proceed to the in-depth evaluation/settlement conference stage of the claims resolution p...
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MEMORANDUM These matters are before the Court on the motions of Barbara Raygor and Cheslene Bledsoe to vacate adverse Alternative Dispute Resolution (“ADR”) decisions and order new ADR hearings.1 For the reasons which follow, the motions will be denied. *552I. Movants Barbara Raygor and Cheslene Bledsoe (“Movants”) are Daikon Shield claimants who separately rejected their Option 3 offers of com...
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MEMORANDUM This matter is before the Court on a Motion by Daikon Shield Claimant Joe L. Hamilton (“Hamilton”) asking the Court to order the Daikon Shield Claimants Ti’ust (“Trust”) to reinstate his disallowed claim. (DS-122304). Hamilton’s claim was disallowed by the Trust for failing to return completed claim materials to the Trust by its August 1, 1994 deadline. His prayer for relief rests on ...
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MEMORANDUM This matter is before the Court on a Motion by the Daikon Shield Claimants Trust (“Trust”) for an Order Implementing the Plan and the Claims Resolution Facility (“CRF”) regarding thirty-eight Daikon Shield Claimants represented by attorney Neil Rossman (“Rossman”). The Trust moves this Court for an Order: (1) sustaining the Trust’s binding election policy; (2) enjoining any litigation...
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OPINION There are presently before the Court nine Motions brought by Marvin D. Geller, Stuart A. Miller, Hans S. Edersheim, Martin R. Bring, James F. Keegan, Esq., Frederick W. Isaacs, Jr., J. Harrison Beal, Emil W. Soli-mine 1 , and Frederic H. Brooks (collectively referred to herein as “MacGregor Board Defendants” or “Movants”) to Dismiss Count Three of the Plaintiffs’ Ad...
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OPINION I. ISSUES PRESENTED The matters before the court are: (1) a motion for summary judgment brought by Emplexx Software Corp. (“Em-plexx”) against AGI Software, Inc. (“AGI” or “Debtor”), Bruce H. Levitt, the Chapter 7 Trustee (“Trustee”) and Aptron Corp. (“Ap-tron”) in connection with the instant adversary proceeding. (2) a motion to vacate the automatic stay brough...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Cause came before the Court upon the trial of the Complaint to Recover Money or Property held on February 2, 1995. The debtor seeks recovery of $16,900.67 in past- *48 due rental payments made during the ninety days prior to the filing of the petition in bankruptcy pursuant to section 547 of the Bankruptcy Code. The defendant asserts that the new...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This Cause came before the Court upon defendant’s Motion for Summary Judgment, filed on February 17, 1995, to which the plaintiff responded on March 8, 1995. In this adversary proceeding, the debtor seeks recovery, pursuant to section 547 of the Bankruptcy Code, of a $19,530 rental payment made during the ninety days prior to the filing of the petition ...
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MEMORANDUM-OPINION This matter is before this Court on the Trustee’s Objection to the Debtor’s claimed exemption of severance pay received from the Debtor’s former employer, NTS Corporation (“NTS”). Having fully reviewed the briefs filed by both parties, this Court sustains the Trustee’s Objection for the reasons set forth below. FACTS The Debtor, Richard Kenneth Johnson (“Debtor”), was previ...
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MEMORANDUM-OPINION This matter is presently before this Court on the Motion of the United States Trustee to Dismiss pursuant to 11 U.S.C. Section 707(a). Having considered the testimony of the debtors at the June 22, 1995 hearing, as well as the briefs and argument of counsel this Court sustains the U.S. Trustee’s Motion to Dismiss for the reasons set forth below. FACTS The Debtors in t...
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MEMORANDUM OPINION AND ORDER DENYING THE UNITED STATES TRUSTEE’S MOTION TO RECONSIDER AND SUSTAINING THE OBJECTION OF ROBERT GOLDEN-BERG On August 10, 1995, the Court heard the United States Trustee’s motion to reconsider the Order entered May 15, 1995, along with the objection of Robert Goldenberg. The Court took this matter under advisement. The May 15th Order accepted the Trustee’s agr...
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MEMORANDUM-OPINION This matter comes before this Court on the Objection of Debtor, Theresa Mae Willis (“Debtor”), to the claim of Creditor, Mark Gibson (“Creditor”). Debtor objects to the claim on the basis that it includes interest accumulated not only since the date of the creation of the lien, but also includes interest accumulated since a prior bankruptcy action filed by Debtor in 1982. H...
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MEMORANDUM Daikon Shield Claimant Christina Johnson (“Movant”), through counsel, filed a motion in response to this Court’s March 1, 1995, Order disallowing unreasonable attorneys’ fees. Rather than objecting to the Court’s Order, Movant recommended that the 10% limitation on attorneys fees payable out of any pro rata distribution be “adopted as reasonable and proper.” Movant’s Motion...
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OPINION GRANTING BUTERA FINER FOODS, INC.’S MOTION TO COMPEL F & M DISTRIBUTORS, INC. TO PAY REAL PROPERTY TAXES ACCRUED PRE-PETITION BUT PAYABLE POST-PETITION UNDER CERTAIN UNEXPIRED LEASES OF NON-RESIDENTIAL REAL PROPERTY Background and Facts Butera Finer Foods, Inc. (“Butera” or “Landlord”) leases space in strip shopping centers located in the Chicago area to three F & M store...
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ORDER This matter was submitted to the court for final determination based on the parties’ written statement of stipulated facts. Plaintiff seeks a determination that attorney fees awarded to her in the parties’ divorce action in the sum of $14,950 are nondisehargeable under 11 U.S.C. § 523(a)(5). This is a core proceeding. 28 U.S.C. § 157(b)(2)(I). Plaintiff, Bobbie Person, and ...
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MEMORANDUM OPINION Debtor filed a motion in this ease seeking court approval of the sale by Debtor of certain furniture inventory in the possession of Debtor and High Point Bank & Trust Company (“High Point Bank”). Debtor seeks to sell the furniture inventory and to transfer liens to proceeds. Objections to the proposed sale were filed by various customers of Debtor who had paid for f...
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ORDER DISALLOWING EVIDENCE OF SETTLEMENT NEGOTIATIONS This matter is before the Court on an evidentiary question associated with a Motion to Establish Fixed Payment on Secured Claim filed by Copelco Capital. The motion was filed on October 3, 1994, and on October 12, 1994, Mr. David Rogers, the Chapter 13 Trustee recommended an adequate protection payment of $140.00 per month. On October 13, 19...
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ALAN JAROSLOVSKY, Bankruptcy Judge. The Internal Revenue Service has objected to the debtor’s Chapter 13 plan because it proposes to separately classify tax penalties and pay nothing on them, while paying 100% to other unsecured claims. While the issue does not seem to be completely resolvable based on briefs, the court will do as much as it can. The court first notes that section 1322(a)(2) of th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS CAUSE came before the Court upon Plaintiffs, Carmen Maria Contreras, as Administrator and Personal Representative of the Estate of Flor Torres Osterman as Guardian for and on behalf of Carmen Lorena Duarte, a minor child (the “Plaintiff’), Complaint to Object to Dischargeability of Debt Pursuant to 11 U.S.C. § 523 (the “Complain...
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MEMORANDUM OPINION This matter came before the Court on the Objection by the Trustee to Property Claimed As Exempt, a 1982 Ford Bronco (Doc. 55). Appearing before the Court were Michael Jones, attorney for the Debtor, Julie Marie Bemish; and John Meininger, attorney for the Chapter 7 Trustee, Leigh R. Meininger. After reviewing the Objection, arguments of counsel, and authorities for their re...
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MEMORANDUM OPINION This matter came before the Court on the Trustee’s Objection to Property Claimed as Exempt. (Doc. 15). Appearing before the Court were Carole Crandall, the Debtor; Burton J. Green, attorney for the Debtor; and John H. Meininger, III, attorney for the Trustee. After reviewing the motion, exhibits, arguments of counsel, and authorities for their respective positions, the Cour...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT, MOTION TO AVOID LIEN, AND MOTION FOR RELIEF FROM STAY THIS CASE came before the Court to consider the Motion for Summary Judgment filed by Miller Cooper (Debtor), and the Answer in Opposition to Motion for Summary Judgment, Cross Motion for Summary Judgment, and Incorporated Memorandum of Law filed by Gibson Group, Ltd. of Pinellas County, Inc. (Gibson). T...
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ORDER In this Chapter 7 case, the Debtor filed a motion on January 17, 1995, under 11 U.S.C. § 522(f) to avoid the judgment hen of Citizens First National Bank (Bank), in the sum of $216,937.81, as impairing the Debtor’s homestead exemption. Hearing on the matter was held February 14, 1995. Both parties have filed memoranda in support of their respective positions. The facts are undi...
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*966 OPINION The issue before the Court is whether a creditor wrongfully seized funds in the Debtor-in-Possession’s bank account. In resolving this issue, the Court must determine whether the funds were trust funds in which the Debtor held only bare legal title, or whether the funds were property of the estate and therefore subject to the creditor’s security interest. St...
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ORDER GRANTING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT Before the Court is the motion for summary judgment of Ben B. Floyd, Trustee of the jointly administered bankruptcy estates of Mary Teresa Ramirez Rodriguez, T.R. Network Companies, Inc., T.R. Financial Services, U.S., Inc., and Amicus Computer Systems, Inc., and plaintiff herein (the “Trustee”). This Court has jurisdiction of this proceeding...
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MEMORANDUM OF DECISION Before the court are cross-motions for summary judgment filed by Three Flint Hill Limited Partnership (“debtor”) and The Prudential Insurance Company of America (“plaintiff’ or “Prudential”) on plaintiffs *708 Complaint to Determine the Validity, Priority and Extent of Lien or Other Interest in Property (the “complaint”). This is a core proceeding under...
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OPINION ON RENEWED MOTION TO REMAND Pamela L. Traylor filed a motion on September 12,1994 to withdraw the reference of this adversary proceeding or to remand the proceeding to state court. The district court reserved ruling on the motion to withdraw the reference pending consideration by this court of the motion to remand.1 The motion to remand came on for hearing on May 10, 1995. For the followin...
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MEMORANDUM OPINION Hearing was held on December 8,1994, on the confirmation of debtors’ First Amended Plan of Reorganization dated October 18, 1994, and on creditor First Union National Bank of Virginia’s Amended Plan of Reorganization dated November 10, 1994. Each party sought confirmation of their own plan and denial of confirmation of the other. The court took the matter under advisement. Af...
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OPINION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND INTER-VENOR’S CROSS MOTION FOR SUMMARY JUDGMENT In this adversary proceeding, the plaintiff/debtor, Double J Cattle Co. (Double J), filed its complaint seeking to avoid the lien of the defendant, Lyle Geis (Geis). The First National Bank of Worland (FNB) had earlier *486 interv...
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MEMORANDUM OPINION The court has considered the Motion of Italimplanti of America, Inc. for Determination of Non-Core Proceeding and for Abstention (Docket No. 6) (“Abstention Motion”), together with the responses, the briefs, the evidence, and the argument of counsel. The court heard the evidence on the Abstention Motion concurrently with the evidence on the Motion for Relief from Stay filed in...
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MEMORANDUM OPINION The court has considered the Motion of Beneficial Texas, Inc.’s For Relief From the Stay (Docket No. 19), together with the Motion to Avoid Non-Purchase Money Security Interest (Docket No. 26) filed by Debtors. The following are the Findings of Fact and Conclusions of Law of the court. A separate conforming Judgment will be entered. To the extent any of the Findings...
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DECISION ON REQUEST FOR RECONSIDERATION OF THE ISSUANCE OF SANCTIONS AGAINST COUNSEL In a decision dated October 16, 1995, 191 B.R. 564 following a trial in the above-entitled adversary proceeding, this Court sua sponte granted sanctions “for the costs incurred by the Trustee, including reasonable legal fees to be approved by this Court, in prosecuting this adversary proceeding through judgment” (...
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*590 ORDER DENYING MOTIONS TO SURCHARGE This matter is before the Court on motions filed by Specialized Pharmacy Services (“SPS”) and Dr. Mamoun Dabbagh to surcharge the Internal Revenue Service (“IRS”) pursuant to § 506(c). Following oral argument on July 10, 1995, the Court took the matter under advisement. The Court now holds that surcharge is not justified and therefore the motions are denie...
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MEMORANDUM This matter is before the Court on Chester Edwards’ (“Debtor”) Motion to incur credit in the course of his Chapter 13 case to purchase a new home. Chrysler Credit Corporation (“Chrysler”) filed an objection, and a motion to modify the debtor’s Plan pursuant to 11 U.S.C. § 1329(a) (Clark Boardman Callaghan, 1995). The motions and objections thereto were presented on oral stateme...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS AND FOR RELIEF FROM STAY Creditor, Lincoln National Life Insurance Company (“Lincoln National”) comes before this Court requesting the dismissal of the above-captioned Chapter 11 proceeding. Lincoln National asserts that (1) the debtor has impermissibly filed this second Chapter 11 petition in bad faith and (2) the debtor’s pre-petition conduc...
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MEMORANDUM OF DECISION Motions pending are: the Debtors’ motion to modify their Chapter 13 Plan; the Trustee’s motion to modify the Chapter 13 plan; Ford Motor Credit Company’s (“FMCC”) motion to dismiss; the Trustee’s attorney’s application for payment of attorney’s fees; and the Debtors’ attorney’s application for payment of attorney’s fees. This case is an example of what can go w...
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205 B.R. 967 (1995) In re Brett CURENTON, Debtor. SOUTHTRUST BANKCARD CENTER a DIVISION OF SOUTHTRUST BANK OF ALABAMA, N.A., Plaintiff, v. Brett CURENTON, Defendant. Bankruptcy No. 90-00087-RRS-13, Ad. No. 94-00188-RRS-13. United States Bankruptcy Court, M.D. Alabama. May 16, 1995. *968 Richard D. Shinbaum, of Shinbaum and Howell, Montgomery, AL, for debtor-defendant. Rita L. Hullet, Parnell, Cru...
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MEMORANDUM OPINION Before the court is the Amended Motion to Set Aside Default Judgment and Grant New Trial (Docket No. 35) filed by the Debtor on September 27,1991. The motion was denied by the court by order entered November 5, 1991, and Debtor appealed. The District Court remanded the proceeding to this court “so that the bankruptcy court may explain its reasons for denying the debtor’s moti...
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OPINION The debtor commenced this adversary proceeding to avoid a judgment hen held by SouthTrust Bank. The debtor filed a motion for summary judgment, and the parties submitted the motion based on the pleadings and briefs and arguments of counsel. The facts are not in dispute. SouthTrust Bank obtained a prepetition judgment against the debtor in the amount of $62,302.25. T...
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OPINION At issue in this chapter 13 proceeding is whether a written agreement between RTO Rents (“RTO”) and debtor for the lease of a washer and dryer is a true lease subject to assumption or rejection under 11 U.S.C. § 365 or a security agreement. In her plan, debtor treats RTO’s claim as secured and proposes to pay RTO the sum of $500.00 (the alleged value of the property) plus interest at ...
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MEMORANDUM DECISION GRANTING MOTION TO DISMISS ADVERSARY PROCEEDING Relying on the so-called “strong arm” provisions of 11 U.S.C. § 544(a)(1), (2) and (3), the debtor-plaintiffs in this adversary proceeding seek a declaratory judgment that defendant ALI, Inc.’s (“ALI”) mortgage lien on the debtors’ real property was wholly released and extinguished by reason of a “Release of Part of M...
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MEMORANDUM OPINION Came on for hearing the Plaintiffs Motion To Compel Non-Party Deponent, Robert G. Bailey, To Produce Document Pursuant To Subpoena Duces Tecum and Give Testimony (Docket No. 1) filed by Lawrence A. Diam-ant, Trustee in Chapter 7 Bankruptcy, Plaintiff in Adversary No. LA 92-03518-AG, pending in the Central District of California (the “Movant”). After considering the pleading...
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MEMORANDUM OPINION The court has considered the Chapter 7 Trustee’s Application for Authority to Retain Coopers & Lybrand, L.L.P. as Special Litigation Consultants to the Chapter 7 Trustee Pursuant to Section 327(e) of the Bankruptcy Code Nunc Pro Tunc to April 1, 1995 (the “Application”) (Docket No. 801). The following are the Findings of Fact and Conclusions of Law of the court. To ...
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MEMORANDUM OPINION 1. INTRODUCTION Before filing his chapter 11 petition, the Debtor and his former wife dissolved their marriage. The state court awarded the former wife $5,500 per month in unallocated family support, an additional $135,000 payable within five years, the marital home, and costs and partial attorney fees. The Debtor unsuccessfully appealed the divorce judgment an...
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ORDER ON OBJECTION TO PORTION OF FINAL FEE APPLICATION OF STROOCK & STROOCK & LAYAN SEEKING TO RECOVER A $1,000,000 PREMIUM THIS is a confirmed Chapter 11 case and the matter under consideration is the request by Stroock & Stroock & Lavan, (Stroock), counsel for the Official Bondholders Committee, for a $1,000,000.00 premium and the objection to same filed by Walter Industries, Inc. f/k/a...
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OPINION REGARDING MOTION TO DISMISS AND CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION On October 13, 1989, Thompson Boat Co. and ITT Commercial Finance Corp. entered into an agreement entitled “Floor Plan Repurchase Agreement.” This agreement specified terms under which ITT would provide financing for dealerships that purchased boats from Thompson. One such term was...
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ORDER In this adversary proceeding Plaintiff/Debtor, James E. Waldo (“Debtor”), seeks discharge of a claim by the Defendant/Creditor Montana Department of Labor and Industry Uninsured Employers’ Fund (“the UEF”). Debtor avers that the claim *120 does not fall under § 507(a)(8)(E) 1 , that the claim is not for an excise tax or a tax for the purposes of the Bankruptcy Code, and that the claim...
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DECISION ON DISCHARGEABILITY OF A FIDUCIARY DEBT UNDER 11 U.S.C. § 523(a)(4) AND NEW YORK LIEN LAW ARTICLE 3-A I. INTRODUCTION Sadie Semilof (“Semilof’) commenced this adversary proceeding against Debtor Michael *36 Waskew (“Waskew”), d/b/a Parker Development and Consultants (“PDC”), a sole proprietorship, on July 19, 1998, seeking to declare as nondischargeable an indeb...
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OPINION REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S REMAINING CLAIMS I. ISSUES Plaintiff, the Official Unsecured Creditors Committee (“Committee”) has filed this adversary proceeding alleging that a certain state court settlement entered into between the Debtor, Long Development, Inc. (“Debt- or”) and the Defendants, Oak Park Village Limited Partnership and O...
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AMENDED ORDER The debtor Richard Wilder Littleton applied for and received permission from this court to sell his residence free and clear of all liens with valid liens to attach to the proceeds. Such sale being consummated, notice was issued by this court July 26, 1994 for all persons claiming an interest in the proceeds of the sale to file claims asserting their lien status and briefs in suppor...
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ORDER Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Reform Act of 1978, in the Central Division of the Western District of Missouri. This adversary action arises from debtor’s complaint to have certain debts owing to the Internal Revenue Service declared to be dischargeable in the bankruptcy proceeding. On August 14, 1995, the Court granted debtor’s motion for reconside...
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MEMORANDUM DECISION This Court has under advisement the motion filed by Central Rents, Inc. (“Central” or “movant”) seeking relief from the automatic stays. A final hearing was conducted on September 18, 1995, at which time Todd Jones appeared for the movant, and the debt- or Freddy Bowman appeared. Mrs. Bowman did not appear. The Court has considered the arguments of counsel, the evidenc...
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